Ponnampalam, R (on the application of) v National Health Service Vocational Training Appeals Panel

Permission to appeal should be refused where proposed challenges are misconceived and have no realistic prospect of success. A later conditional willingness to reconsider an earlier assessment, if subsequent performance proved satisfactory, is not inherently inconsistent with the earlier refusal to certify training or with evidence supporting that refusal. It does not, without more, justify an allegation of perjury or require oral evidence. Natural justice does not require cross-examination where the decision-maker has adequate written material, gives rational reasons and identifies no material inconsistency. After substantial delay, particularly where original records have been destroyed, reopening proceedings may be positively unjust because a fair evaluation is no longer possible.

Dr Ponnampalam made two related applications for permission to appeal. The first concerned Scott Baker J’s refusal of permission to apply for judicial review of a National Health Service vocational training appeal panel’s decision concerning a certificate of equivalent experience. The second concerned the Employment Appeal Tribunal’s dismissal of an appeal against refusal to review an Industrial Tribunal decision made in 1984.

The applications centred on a letter written by Dr Stranders in 1994. The applicant argued that the letter was inconsistent with Dr Stranders’ earlier evidence and his failure to issue a training certificate. The central issues were whether the alleged inconsistency required cross-examination and whether the old tribunal decision could fairly be reopened.

Lord Justice May, giving the only judgment, refused both applications for permission to appeal. Neither proposed appeal had any prospect of success and both were misconceived.

1. Alleged inconsistency. Dr Stranders’ 1994 letter did not contradict his earlier evidence or his failure to issue the certificate for the applicant’s 10-month training period. The later statement was conditional. It contemplated reconsideration only if another trainer subsequently considered the applicant’s performance satisfactory. That possibility was not inconsistent with Dr Stranders’ original assessment that the performance had been unsatisfactory.
2. Review of the 1984 decision. The Employment Tribunal chairman and the Employment Appeal Tribunal were entitled to take account of the extreme delay, the destruction of the original tribunal records and the resulting difficulty of fairly weighing the new material against the original evidence. In those circumstances, reopening the proceedings would have been positively unjust. The principle that litigation should achieve finality was applied to the particular circumstances and was not treated as an absolute bar to reopening in every case.
3. Cross-examination and the appeal panel. The vocational training appeal panel gave adequate reasons for declining to require Dr Stranders to attend for cross-examination. The written material did not disclose the serious contradiction alleged by the applicant. The panel was also entitled to rely on the findings of the 1984 Industrial Tribunal when assessing the applicant’s training history, notwithstanding that the earlier proceedings concerned racial discrimination.

The applications for permission to appeal were refused.

• Court of Appeal (Civil Division) — On 15 March 2001, Lord Justice May refused both applications for permission to appeal: [2001] EWCA Civ 421.
• High Court, Administrative Court — Scott Baker J refused permission to apply for judicial review on 3 October 2000.
• Employment Appeal Tribunal — On 13 June 2000, the tribunal dismissed the appeal against refusal to review the earlier decision.
• Employment Tribunal — In December 1999, the chairman refused to reopen the 1984 Industrial Tribunal proceedings, whose claim had failed in March 1984.