Serco Ltd v Wells

Case-management orders carry a strong principle of finality, certainty and institutional integrity. A later judge of equivalent jurisdiction should ordinarily leave an earlier order undisturbed unless there has been a material change of circumstances, a material omission or misstatement, or another substantial reason of the rare and out-of-the-ordinary kind.

Under rule 29 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, whether circumstances have materially changed is an objective question. A later judge must not treat a more detailed list of issues, distilled from the existing case, as a material change merely because it alters the judge’s perception of the case. The remaining case-management factors may involve discretion, but they cannot cure the absence of a proper ground for variation.

An Employment Judge ordered a preliminary hearing to determine the claimant’s length of service. The parties later agreed a detailed list of 96 issues. After an unsuccessful judicial mediation, a Regional Employment Judge revoked the earlier order, treating the list of issues and related case-management considerations as a material change of circumstances and concluding that variation was necessary in the interests of justice.

The employer appealed. The central issues were whether the later judge had a proper legal basis to interfere with an order made by a judge of equivalent jurisdiction, whether the list of issues constituted a material change of circumstances, and the extent to which civil-procedure authorities informed the application of the Employment Tribunal Rules.

1. Appeal allowed. The earlier order was restored and a separate preliminary hearing was to be listed.
2. The Employment Tribunal Rules were to be interpreted consistently with the underlying principle of finality and certainty of judicial orders and decisions. Challenges should ordinarily be made by appeal to a superior tribunal, rather than by asking a judge of equivalent jurisdiction to reconsider an earlier decision.
3. Although neither the CPR nor the Employment Tribunal Rules expressly defined all permissible grounds, variation of an earlier order normally required a material change of circumstances, a material omission or misstatement, or another substantial reason. The latter category could not be exhaustively defined, but would be rare and out of the ordinary. Rule 29’s reference to what was necessary in the interests of justice had to be understood through that principle.
4. The question whether circumstances had materially changed was, at least principally, objective. It was not determined merely by asking whether the later decision fell within the generous ambit of reasonable disagreement. The issue was whether the factual matrix could support the conclusion that circumstances had changed materially.
5. The agreed list of issues did not materially change the case. It provided a more detailed analysis of the existing pleadings and explained what had to be decided. It did not alter the nature of the case or justify revision of the earlier order. The later judge therefore erred in law in treating it as a material change.
6. The other matters relied upon by the later judge were legitimate discretionary case-management factors. They did not themselves disclose an error of law, but they could not supply the missing threshold basis for interference.

• Employment Tribunal: Employment Judge Coles ordered a preliminary hearing on length of service. Regional Employment Judge Parkin later revoked that order.
• Employment Appeal Tribunal: The appeal was allowed. The Coles Order was restored and a separate preliminary hearing was directed.