Thread by @JasonBraier

1/ Liverpool Heart & Chest Hospital v Poullis: EAT reinforces the need for a material change in circumstances or a mistatement of fact before an EJ can alter a previous EJ's order - in this case to list a PH for a potential deposit order app'n.

#ukemplaw
assets.publishing.service.gov.uk/media/61eaa374…

2/ The judgment is also instructive on the EAT view of parties' failure to sort the pleadings issues before the PH, the dangers of asking for F&BP & the ill-fated practice of fixing further PHs anticipating potential applications that might be made in the future.

3/ The case involves unfair & wrongful dismissal, including a s.103A automatic unfair dismissal claim. Across PHs, the claim was amended & the disclosures & detriments expanded, but amendments were allowed as an EJ didn't consider it to add new matters to the pleadings.

4/ EJ Tayler bemoans, in obiter, the practice of ending a PH by sending parties away to provide further information on the pleadings. Parties should cooperate to resolve this before the PH.

It's a nice idea, but so very often it's not feasible, especially with LiPs.

5/ In this case, an EJ at a PH listed a further PH for consideration, inter alia, of an application for a deposit order, asking the R to write in to confirm it wanted to proceed with it and brief reasons why.

6/ Amendments to the PoC, however, meant the listing was converted to deal with an amendment application & directions on pleadings rather than the deposit order application. At that PH, R asked for the listing of a further PH to deal with deposit orders, but the EJ declined to.

7/ The EJ considered - without submissions - there wasn't a reasonable prospect of a deposit order being made, and thus decided yet another PH shouldn't be listed. The R appealed against that decision.

8/ The EAT allowed the appeal. Looking at the position under the CPR in Tibbles & its adoption when dealing with ET Rules r.29 in Serco v Wells, the EAT was satisfied that the ET had failed to consider - as required - whether there was a material change in circumstances

9/ Such was essential before varying the previous EJ's order (misstatement of fact is another basis, but that's incredibly rare).
HHJ Tayler considered, in obiter, whether the EAT in Serco was right to describe on variation as a jurisdiction one rather than discretionary.

10/ HHJ Tayler viewed that conclusion in Serco as in obiter & expressed his preference for considering it a discretionary decision but a curtailed one, though it was a matter which might be given more detailed consideration in an appeal on which it was a crucial issue.

11/ An impact of that classification is that it increases the respect and latitude the EAT should give to an ET decision that there has been a material change in circumstances. There could be no such latitude with a jurisdictional question.

12/ Here, however, given the failure of the EJ to consider at all the material change question, the discretion hadn't been exercised & the test hadn't been applied. The matter was thus remitted to the ET to await any written request from the R for a deposit order hearing.

13/ HHJ Tayler ends his judgment bemoaning the practice of EJs to list further PHs on the basis that there "may" be applications meriting consideration at such a hearing. Better to provisionally fix whilst providing that an EJ will decide whether it should proceed.