Kymanywa v London Borough Of Hackney

An application for permission to appeal should be adjourned where the appellate court lacks documents essential to determine a material procedural issue. The missing material must be obtained before the application is re-fixed. An appeal against refusal of a review is confined to points of law, and a challenge to the exercise of the review discretion must show that it was plainly wrong. The court did not determine the merits because the available bundle did not establish the solicitors’ status when notice of the employment tribunal hearing was sent.

The applicant brought sex and race discrimination proceedings against her employer. After several adjournments, the Employment Tribunal dismissed the claim when she did not attend the hearing. It later refused to review that decision or adjourn the review so that further evidence could be called.

The Employment Appeal Tribunal allowed the appeal to proceed as a preliminary matter, directed that relevant parts of the Employment Tribunal file be obtained, and subsequently dismissed the appeal on the basis that there had been no error of law. On the application for permission to appeal, the Court of Appeal found that documents said to have been before the Employment Appeal Tribunal were missing from the bundle. The central issue was whether those documents established the status of the applicant’s solicitors when notice of the original hearing was sent.

Application adjourned. The Court of Appeal did not determine the application for permission to appeal.

1. The underlying discrimination claim had been dismissed after the applicant failed to attend. The Employment Tribunal had found that notice of the hearing was sent to solicitors who were on the record and had refused a review and a late adjournment. The Employment Appeal Tribunal dismissed the resulting appeal, finding no error of law.
2. The court noted that an appeal against refusal of a review is limited to points of law. Since refusal of a review involves the exercise of a discretion, intervention ordinarily requires a showing that the discretion was plainly wrongly exercised. This issue was not finally determined.
3. The status of the solicitors when the hearing notice was sent was material to the application. The documents obtained from the Employment Tribunal file for the Employment Appeal Tribunal hearing had not been included in the Court of Appeal bundle. Without them, the court could not determine the application.
4. The application was therefore adjourned and was not to be re-fixed until all relevant documents had been lodged with the Civil Appeals Office. If there was difficulty obtaining them, the office was directed to seek the entire bundle from the Employment Appeal Tribunal. The matter was reserved to Lord Justice Mummery.

1. Court of Appeal (Civil Division): The application for permission to appeal was adjourned pending lodging of the missing documents.
2. Employment Appeal Tribunal: On 12 July 2002, the appeal was dismissed; the tribunal found no error of law in the Employment Tribunal’s refusal of a review.
3. Employment Tribunal: On 29 March 2001, the tribunal refused the review application and refused an adjournment for further evidence. The original discrimination claim had been dismissed following the hearing fixed for 6 September 2000.