Case No: A2/2007/0503
Neutral Citation Number: [2007] EWCA Civ 708
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL 
(HIS HONOUR JUDGE REID QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 27th June 2007
Before:

LORD JUSTICE MUMMERY
and
LORD JUSTICE LAWS

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Between:

	FLETCHER-COOKE	
Appellant	
	- and -		
	
THE BOARD OF GOVERNORS OF HAMPTON SCHOOL	

Respondent	

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Mr D Craig (instructed by Messrs Mischon De Reya) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Lord Justice Mummery:
1.	This is an adjourned application for permission to appeal.  The application is made by Mr Craig, counsel for the claimant in the proceedings before the Employment Tribunal for disability discrimination and unfair dismissal.  Under a decision of the Employment Tribunal of 9 June 2005 liability was established for disability discrimination and discriminatory dismissal.  There was then a remedies hearing following which the reasons of the Tribunal were sent to the parties on 12 May 2006.  This was followed by an appeal to the Employment Appeal Tribunal and a judgment given by HHJ Reid on 15 February 2007 dismissing the claimant’s appeal and refusing permission to appeal.  The claimant wishes to pursue the matter further in this court in relation to the treatment by the Employment Tribunal of his claims for future loss of earnings.  The papers came before Wall LJ, who on 17 April 2007 directed that the application should be listed before a two-judge court (not on notice to the respondent governors of Hampton School, where the claimant was formerly employed as a teacher).  Rather puzzling is the direction given by Wall LJ that two hours was his time estimate for the hearing of the application.  I made it clear to Mr Craig at the outset that I did not see the need for a 2-hour hearing.  Applications for permission made ex parte are normally allowed no more than 30 minutes, particularly as we had had the benefit from Mr Craig of a very detailed skeleton argument setting out the points that he wanted to make on the question of loss of future earnings.
2.	In his oral submissions this morning, Mr Craig has developed his arguments on the section of the Employment Tribunal’s remedies decision dealing with future loss.  I am not going to go into the details of this now because Lord Justice Laws and I are of the view that a sufficient case has been made out by Mr Craig for granting permission to appeal.  The position, shortly, is that the Tribunal set out the relevant law on this aspect of the claim correctly in paragraph 122 of the reasons.  They referred to the approach to compensation for loss of earnings discussed by Morison J in the case of Ministry of Defence v Cannock [1994] ICR 918, subsequently approved by this court in Vento v Chief Constable of West Yorkshire Police [2003] ICR 318.  It was pointed out that the relevant principle is that the claimant is entitled to be put into the position he would have been in but for the unlawful conduct, in this case discriminatory conduct on the basis of disability.  As for future losses where the tribunal has to speculate as to what would happened the Tribunal should not take an all-or-nothing approach to the question, but assess compensation on the basis of percentage chances.
3.	Then Mr Craig took us to the relevant paragraphs in the decision headed “future loss” in the section paragraphs 143 to 148.  His main point was that the Tribunal had not followed in those paragraphs the self‑direction in paragraph 122 and had involved themselves in making findings of fact in relation to future events.  He says this was a fundamentally flawed approach, which would produce a substantially lower sum of compensation to his client’s future loss than would have been produced if they had correctly applied the law.  
4.	I am not going to go into the detailed points on paragraphs 143, 147 and 148. Those are matters are for full argument at an inter partes hearing.  I am satisfied, as Lord Justice Laws is also, that there is justification here for a hearing by the full court.  It is not an easy issue.  There is relatively little authority on it in employment law cases generally and, as far as I am aware, no authority at all in the area of disability discrimination where particular problems may arise when one is looking at the future employment prospects of a person who has been at the receiving end of disability discrimination and a dismissal.  
5.	What I propose is that the court orders that permission be granted for this appeal; that the estimated length of the hearing will be one day; that the constitution hearing the appeal should consist of three Lords Justices, one of whom has experience of having sat in the Employment Appeal Tribunal.  I think I can also indicate that it would be helpful to have one Lord Justice who has some experience of assessing compensation in personal injury cases where this is a more common problem.  With that expertise there will be a chance to examine this question in more depth than is possible on this ex parte hearing.  
6.	There is one other matter I should mention which I have raised with Mr Craig and of which he tells me his client is aware.  It is this: the hearings in the Employment Tribunal and the Employment Appeal Tribunal have not, as is commonly the case, been the subject of any adverse orders for costs.  In general the practice of the tribunals is still to make no orders for costs again parties who have lost.  This is different in this court, even in employment cases.  The general rule here is that the loser has to pay the costs of the appeal.  I mention that because I have had experience where this general practice has come as a nasty shock to someone who has got permission to appeal and has gone ahead, confident that he is going to succeed, and has instead has gone away with a bill for his own costs and a bill for the other side’s costs.  I mention that so that there is no misunderstanding about what is likely to happen on this appeal when it comes to asking for costs.
Lord Justice Laws:
7.	As my Lord, Lord Justice Mummery, has indicated I am of the same mind as he is as to the outcome of this application and for the reasons he has given I would grant permission to appeal and make the directions indicated by him.

Order: Application granted.