Archer, R (on the application of) v Employment Tribunal & Ors

Where an applicant alleges that an appellate decision may have been influenced by material supplied by an interested party, procedural fairness may be secured by disclosing the material and allowing further submissions. If the court confirms that it did not rely on the material, and the applicant elects not to pursue the complaint after having an opportunity to do so, no further order is required.

The applicant sought permission to appeal out of time from the decision of Maurice Kay J dated 19 July 2001 in judicial review proceedings. Lord Justice Pill refused permission on 30 November 2001. The applicant then questioned whether his approach had been prejudiced because an interested party, London Cab Drivers Club Ltd, had sent the Court of Appeal a bundle which had not initially been supplied to her.

A further hearing was arranged. The applicant did not attend, but confirmed in writing that she did not wish to pursue the matter. The central issue was whether any further procedural or substantive order was required.

1. No further order was made. The further hearing addressed the applicant’s concern that the Court of Appeal’s refusal of permission might have been influenced by the interested party’s bundle.
2. Lord Justice Pill confirmed that he had not read the bundle except to identify the order sought on costs and to locate one document referred to in the applicant’s own application. The document was subsequently found in the applicant’s bundle. The refusal of permission had been based on the applicant’s bundle, and the interested party’s paper application for costs had not been entertained.
3. The applicant had been given the opportunity to consider the documents and make further submissions. She expressly declined to attend and sensibly decided not to pursue the matter. In those circumstances, the court considered that the alleged procedural concern required no further remedy.
4. The interested party’s failure initially to disclose its bundle to the applicant did not alter the result, because the court had not relied on the material and the applicant had subsequently been given a fair opportunity to address it.

The formal result was: no orders made.

1. Court of Appeal (Civil Division): Lord Justice Pill refused permission to appeal on 30 November 2001. At the further hearing on 11 December 2001, no further order was made.
2. Queen’s Bench Division: Maurice Kay J gave the decision under challenge in judicial review proceedings on 19 July 2001.