LIVERPOOL HEART AND CHEST HOSPITAL NHS FOUNDATION TRUST v DR MICHAEL POULLIS

A tribunal may vary or revoke an earlier case-management order only through a principled exercise of its discretion. Ordinarily, this requires a material change of circumstances, a material misstatement or omission, or another unusual and substantial reason. Finality, reliance on existing orders and the need to avoid an impermissible second hearing remain important considerations.

A tribunal cannot cancel a listed preliminary hearing merely because it takes a different view of the merits from the judge who ordered it, unless a proper basis for varying the order is identified. The affected party should receive notice and an opportunity to make submissions. Where the need for a future preliminary hearing remains uncertain, it may be provisionally listed subject to later judicial control and the overriding objective.

The claimant, a cardiothoracic surgeon, brought claims for wrongful and unfair dismissal, automatic unfair dismissal for protected disclosures, and detriments for protected disclosures. The respondent sought a deposit order on the basis that the claims had little reasonable prospect of success.

An employment judge had listed a preliminary hearing, subject to the respondent confirming the issues it wished to pursue and providing cogent grounds. Following protracted amendment and pleading disputes, a later employment judge cancelled the hearing for the deposit-order application because he considered that application had no prospect of success.

The respondent appealed only the cancellation of the preliminary hearing. The central issue was whether that earlier listing could be revoked without identifying a material change of circumstances.

1. Appeal allowed. On the basis on which the appeal had been advanced and defended, the earlier order provided that a preliminary hearing would determine a cogently formulated deposit-order application. To cancel that listing, the tribunal had to identify a material change of circumstances, while being entitled to take account of the tentative nature of the original listing.

2. Rule 29 of the ET Rules 2013 confers a broad power to vary, suspend or set aside case-management orders where necessary in the interests of justice. That power is subject to a principled curtailment. Normally there must be a material change of circumstances, a material misstatement or omission, or another unusual and substantial reason. This protects finality and prevents a judge from effectively hearing an appeal from an order of a judge of equivalent jurisdiction.

3. The later employment judge did not consider whether circumstances had materially changed. The increased detail in the pleaded case could not implicitly supply that basis, because he had found that the essential claim had not materially changed. His differing assessment that the deposit-order application lacked merit was not itself a material change of circumstances. The respondent should also have received notice that cancellation was under consideration and an opportunity to make submissions before the decision.

4. The EAT expressed misgivings about characterising material change as a jurisdictional question rather than a constrained exercise of discretion. It was unnecessary to decide that issue. Whether a change is material may depend on the litigation history and may permit a range of reasonable analyses.

5. The matter was remitted. The respondent was given 14 days to state whether it wished to pursue a deposit-order application and to provide concise, cogent grounds. The claimant could then identify any asserted material change of circumstances. A different employment judge was to determine those matters. The EAT also gave guidance that uncertain future preliminary hearings may be listed provisionally, with their continuation and scope reserved to judicial determination in accordance with the overriding objective.

• Employment Appeal Tribunal: Allowed the respondent's appeal and set aside the cancellation of the preliminary hearing for the deposit-order application: [2022] EAT 9.
• Employment Tribunal: Employment Judge Robinson declined to fix, and cancelled the listing of, a preliminary hearing to consider the respondent's deposit-order application.