Appeal No.	EAT/0451/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 December 2001

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MS J DRAKE
MRS A GALLICO

PAPA LUIGI DIAL A PIZZA	APPELLANT

MR M SHABIR	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR THOMAS KIBLING
(Of Counsel)
Appearing under the 
Employment Law Appeal
Advice Scheme	

MR JUSTICE MAURICE KAY
1.	We treat this as the first occasion on which this appeal has been listed for preliminary hearing having been told that the hearing that was adjourned on 25th September was adjourned because of the ill health of the Appellant’s representative, Mr Malajny. 

2.	This case has caused us some difficulty to the point that we feel it would be inappropriate to rule today that the matter either is or is not suitable to proceed to a full hearing. We say that because we are not satisfied, on the present material, that there is a reasonably sustainable appeal, but that may be the result of gaps in the information in the material that is before us. 

3.	What we have decided to do, with a degree of regret, is to adjourn the matter for a further preliminary hearing, and in the meantime to direct that the chairman of the Employment Tribunal who conducted the Review Hearing, Mr Goodier, be invited to supply his Notes of Evidence and any observations he can make, by way of recollection, as to the basis upon which it was found that Mr Ambrose “could have been called at the original hearing”. 

4.	We shall also direct that Mr Malajny provide a witness statement, supported by a statement of truth, setting out the history of the attempts that were made to procure the attendance of Mr Ambrose before the original Employment Tribunal hearing, before the application for a review and before the Review hearing itself. He should include and exhibit copies of all correspondence, including correspondence with the Employment Tribunal. When those matters are to hand the case can be re-listed for a further preliminary hearing. 

5.	We presently find ourselves in the state of mind that we are not satisfied that there are grounds of appeal because of lack of information about matters. We should also say this. We are very conscious of the fact that, ultimately, this is a case about unfair dismissal where the compensation amounted to little more than £1000. The order that we are making today places no further financial burden upon Mr Shabir, who at the moment is the successful litigant. Whether his award is to be jeopardised by the pursuit of this appeal to a full hearing, only time will tell. 

6.	We are also mindful of the fact that the dismissal when it occurred does appear to have had procedural deficiencies. In other words, whatever gold Papa Luigi may strike in relation to the evidence of Mr Ambrose, it is not a case which seems, on the face of it, to be one in which Papa Luigi is ultimately guaranteed success. All that, of course, will be for others to decide. 

7.	We make these comments simply for this reason. As the matter has gone on for a considerable time, and relates to a relatively small sum of compensation in round terms, we do question whether the energies of the parties would not be better put to seeing whether they can settle their differences otherwise than by expending time, energy and cost on litigation. For the moment those are burdens that fall only on the Appellant, Mr Shabir not being party to these ex parte proceedings, but the time must come in litigation of this sort when, surely, it is in everybody’s interest to say enough is enough. For the moment we are not going to shut it out. We order that this case should be listed to suit Mr Kibling’s availability in his capacity as an ELAAS advocate.