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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mist v Derby Community Health Services NHS Trust (Practice and Procedure: Amendment)  UKEAT 0170_15_2201 (22 January 2016)
Cite as:  ICR 543,  UKEAT 0170_15_2201
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
Judgment handed down on 22 January 2016
Transcript of Proceedings
APPEAL & CROSS-APPEAL
Premier Legal LLP
35 Park Row
Capsticks Solicitors LLP
PRACTICE AND PROCEDURE - Amendment
TRANSFER OF UNDERTAKINGS - Transfer
TRANSFER OF UNDERTAKINGS - Consultation and other information
Application to amend existing ET proceedings to add a claim against a Second Respondent (the transferee in a TUPE transfer). Without determining the date of the transfer but assuming liability for the Claimant’s employment and any failure to inform and consult transferred to the Second Respondent, the ET nevertheless refused to allow the amendment and struck out the claims against the Second Respondent.
On the Claimant’s appeal and the Second Respondent’s cross-appeal:
Allowing the appeal:
The approach to be adopted by the ET was as laid down in Selkent Bus Co Ltd v Moore  ICR 836; in particular, where the application was to add a claim out of time that would not be determinative, neither would any failure of explanation for the delay. The paramount consideration was the relative injustice and hardship in refusing or granting an amendment.
The ET’s focus had been on what it (permissibly) found to be an absence of explanation by the Claimant. When considering relative injustice and hardship, it permitted the prejudice to the Second Respondent (limited to the inability to take a time-limit point) to outweigh that to the Claimant (denied any right to bring a claim against the transferee in a TUPE transfer). In so doing, it made the time-limit determinative of the application; that was an error of approach and the appeal would be allowed.
Allowing the cross-appeal in part:
The Second Respondent’s procedural arguments relating to early conciliation (raised for the first time by way of cross-appeal) were rejected. To the extent that there was any error in the identification of the prospective Respondent in either early conciliation certificate and/or difference between the details in that certificate and those on the ET1: (i) the ET had been entitled (applying Rule 12(2A) ET Rules 2013) to accept the EC certificate; (ii) in any event, any decision not to reject the ET1 had been taken at an earlier stage and was not the decision under appeal and so could not be cross-appealed at this stage (applying Basildon & Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14/RN); (iii) as for the application to join the Second Respondent, this fell to be considered as a possible amendment to an existing claim and, as such (by analogy with Science Warehouse Ltd v Mills UKEAT/0224/15/DA), did not require a further early conciliation notification (an approach that was consistent with the language of Rule 34 ET Rules 2013 and the overriding objective).
The second and third grounds of cross-appeal would, however, be allowed. The ET had wrongly assumed (without determining the point; which would have required it to first determine the date of transfer) that liability for the Claimant’s employment transferred to the Second Respondent without engaging with the question of whether she had been (relevantly) employed immediately before the transfer for the purposes of Regulation 4(3) TUPE. It had also proceeded on the basis that the entire liability for any failure to consult (under Regulations 13 and 14 TUPE) transferred to the Second Respondent, thus failing to take into account the joint and several liability of transferor and transferee for the purposes of the Regulation 15 claim. These being matters that went to the exercise of the ET’s discretion on the question of allowing the application to amend, further representations would be permitted from the parties in writing on the question of disposal.
HER HONOUR JUDGE EADY QC
1. I refer to the parties by the titles used below. This is the Claimant’s appeal against a Reserved Judgment of the Nottingham Employment Tribunal (Employment Judge Blackwell sitting alone on 15 December 2014; “the ET”), sent out on 12 January 2015. Mr Jupp appeared for the Claimant at the ET, as he does today. Ms Masters now represents the Second Respondent (the Respondent to the appeal), but did not appear below. There was another Respondent before the ET (Derby Hospitals NHS Foundation Trust; “the First Respondent”), but the ET found the Claimant’s employment had transferred from it to the Second Respondent for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”), and it has since been dismissed from the proceedings.
2. Having found the Claimant’s employment had transferred to the Second Respondent, the ET went on to strike out the Claimant’s claims against it, as having been brought out of time. It is against that decision that the Claimant appeals. For its part, the Second Respondent resists the appeal and pursues a contingent cross-appeal.
The Background Facts
3. The Claimant is a qualified respiratory rehabilitation instructor. From 1 October 2010, she had been employed by the First Respondent, providing programmes of rehabilitation exercise to patients. She worked ten hours a week, spending 80 per cent of her time delivering what was described as a phase 3 programme (a six-week supervised rehabilitation exercise programme) and 20 per cent on phase 4 (an optional subsequent programme for patients).
4. In January 2014, it was decided that the contract to provide phase 3 services was to be awarded to the Second Respondent. The Claimant worked on phase 3 and 4 programmes until 31 March 2014; thereafter her duties entailed only paperwork and tidying up. She tried to obtain clarification as to her future employment, lodging a grievance seeking confirmation that her employment would transfer under TUPE. She ultimately resigned on 10 April 2014.
The ET Proceedings
5. The effective date of termination (“EDT”) of the Claimant’s employment was thus 10 April 2014. On 4 July 2014, she lodged an ET claim against the First Respondent, complaining of constructive unfair dismissal, unfair dismissal under TUPE, indirect sex discrimination, less favourable treatment of a part-time worker and, under Regulation 15 TUPE, of a failure to inform and consult (contrary to Regulations 13 and 14). Although those claims were brought solely against the First Respondent, the particulars of complaint made clear that, prior to her resignation, the Claimant had considered TUPE applied and identified the Second Respondent (as “Derby Community Health Services (“DCHS”)”) as the entity that had won the tender to provide phase 3 services. As the ET subsequently observed:
“28. … the ET1 does everything to involve the Second Respondent as transferee save for actually adding them as a Respondent.”
Moreover, in her complaint under Regulation 15 TUPE, the Claimant positively asserted there had been a relevant (service provision change) transfer to the Second Respondent.
6. Although not an issue before the ET, because it has been raised by the cross-appeal, it is relevant to note that, on 1 May 2014, the Claimant notified ACAS of her prospective claim pursuant to the Early Conciliation (“EC”) procedure and there is an EC certificate of 3 June 2014 that refers to the prospective Respondent as the “Royal Derby Hospital”, with the address “Uttoxeter Road, Derby, Derbyshire, DE22 3NE”. When issuing her ET1, the Claimant had named the First Respondent as “Derby Hospitals NHS Foundation Trust”, with the address being for the Royal Derby Hospital as above. It does not appear that the ET considered there to be any discrepancy between the details on the EC certificate and those entered on the ET1; although, as it was not an issue explored before the ET, I cannot be certain as to what, if any, view was taken on the naming of the First Respondent, albeit the claim was clearly not rejected.
7. The First Respondent served its Response to the Claimant’s ET claim on 7 August 2014. It took no issue in relation to the EC certificate; whilst it gave its correct address as the Derby City General Hospital, it did not suggest this meant there was any difficulty with the ET1. It further confirmed the contract for the relevant services had been awarded to “Derbyshire Community Health Services (“DCHS”)”, observing:
“32. At the date of the Claimant’s resignation the [First Respondent] was still in discussions with DCHS about TUPE as requested by the Claimant. … in resigning on 10 April 2014 the Claimant jumped the gun. She had given the [First Respondent] just 2 weeks to resolve a complex legal point involving another Trust DCHS, the successful bidder who had presumed TUPE did not apply, and potentially, depending on the result of discussions, the commissioner of the services and therefore it was unrealistic to expect a rapid result since there would be cost implications where there is a change from a non-TUPE to a TUPE bid. In any event the timing was driven by the date of the proposed transfer …”
8. The First Respondent’s ET3 was served on the Claimant on 26 August 2014 and a telephone case management discussion listed for 4 September 2014. Shortly prior to that, on 1 September 2014, those acting for the Claimant applied to join the Second Respondent and the Claimant further notified ACAS of her potential claim against that entity, albeit apparently identifying it as “Newholme Hospital, Baslow Road, Bakewell, Derbyshire, DE45 1AD”.
9. The Claimant’s application to join the Second Respondent was considered at the 4 September telephone hearing, conducted by Employment Judge Heap. Mr Jupp says that, until then, the Claimant was unaware of the Second Respondent’s correct title and address (although I note she had referred to it as “Derby Community Health Services (“DCHS”)” in her ET1). Permitting the Claimant to join the Second Respondent, EJ Heap observed:
“9. … Given that this is an early stage of the proceedings and that, if the Claimant is correct as to the applicability of TUPE to these circumstances, the refusal may otherwise leave her without remedy, I am prepared to add [the Second Respondent]. I am also satisfied that there is good reason that the Claimant did not add [the Second Respondent] in the first instance in that as she understood matters, until receipt of the ET3 Response, there had been no transfer of the Phase 3 work before her resignation.” (ET Order paragraph 9)
10. In identifying the correct entity to be so joined, EJ Heap’s case management summary records that the application had been to join “DCHS”:
“8. … which I now understand after discussion today and some “Googling” of the title of that entity during the hearing, to be Derbyshire Community Health Services NHS Trust. …”
11. The Second Respondent was then given 28 days to respond and did so on 2 October 2014, raising the argument that the ET did not have jurisdiction to hear the claims against it as they had been brought out of time. It took no issue, however, in respect of the Claimant’s compliance with early conciliation or with any earlier (mis-)identification of it by an incorrect title. More substantively, it observed that the Claimant resigned on 10 April 2014, whereas:
“9. … The contract for the Phase 3 Services was awarded with effect from 1 April 2014, although the services themselves did not start to be performed by the second respondent until June 2014, and continued to be performed by the first respondent in the meantime. Consequently, the claimant was not ordinarily employed by the first respondent immediately before the transfer, and so did not transfer to the second respondent, nor did any of the liabilities transfer.”
The ET’s Conclusions and Reasoning
12. The ET first considered the application of TUPE: it concluded that there had been a relevant transfer to the Second Respondent, but declined to determine the date of the transfer as it considered there was insufficient evidence (paragraph 2). That said, it concluded that from “a date yet to be determined” the Claimant became an employee of the Second Respondent (paragraph 24). Later on, the ET further stated it took the view that:
“36. … liability would have passed to the Second Respondent under Regulation 4 of the 2006 Regulations. …”
13. As to whether the Claimant’s claim against the Second Respondent was out of time, it seems the ET approached this as an application to amend, invoking its general case management powers, to be exercised in accordance with the principles laid down in Selkent Bus Co Ltd v Moore  ICR 836. As the application raised new complaints against the Second Respondent, the ET considered the applicable statutory time limits, concluding it had been reasonably practicable to include the Second Respondent in the original claim; there was no good explanation why the Claimant failed to do so and thus the unfair dismissal and failure to consult claims were out of time. As for the sex discrimination and part-time worker claims, in the absence of an explanation it was not just and equitable to extend time.
14. The ET did not, however, stop there but reverted to the guidance provided in Selkent, noting the timing and manner of the application were relevant factors but reiterating that there had been no explanation for the delay of 57 days, albeit this was not significant in the sense that it impacted upon the cogency of the evidence. Finally, it considered relative hardship. As it took the view there was a relevant transfer and all liabilities had passed from the First to the Second Respondent, if denied the amendment the Claimant would be deprived of any remedy. On the other hand, the hardship to the Second Respondent was that it would have to defend the action and might be responsible for the actions of the First Respondent (paragraph 36). Taking all factors into account, the ET declined to exercise discretion in the Claimant’s favour and struck out her claims against the Second Respondent.
15. In her amended grounds of appeal the Claimant contends that:
(1) The ET erred in holding she ought to have joined the Second Respondent to the proceedings before 1 September 2014 when she did not know (before receiving the First Respondent’s ET3) that a transfer had taken place and it remained unclear, the ET having declined to determine the point, when the transfer took place.
(2) The ET erred in determining the delay was 57 days; at most it was 21, time having been extended as a result of ACAS EC.
(3) The ET failed to apply Selkent principles. In particular, it (a) considered there was no explanation for delay when a proper reason (lack of clarity as to whether a transfer had occurred) had been advanced (as accepted by EJ Heap); (b) gave undue prominence to the expiration of primary limitation periods; (c) failed to appreciate the delay was of 21, not 57 days; (d) failed to recognise the application was made at an early stage; and (e) failed to properly assess the balance of hardship.
(4) For all those reasons, the ET reached a perverse conclusion.
16. The Second Respondent resists the appeal, essentially relying on the Reasons provided by the ET, but also puts forward a contingent amended cross-appeal on the following bases:
(1) The ET did not have jurisdiction to consider the claim as the mandatory EC procedure had not been complied with by the Claimant, and the ET erred in failing to consider this as a potentially relevant factor (“the procedural points”).
(2) The ET erred in law in assuming that pre-transfer liabilities for the Claimant transferred from the First to the Second Respondent (“the TUPE Regulation 4(3) point”).
(3) The ET erred in assuming that the Second Respondent was solely liable for a breach of TUPE consultation requirements when transferor and transferee had joint and several liability (“the TUPE Regulation 15, joint-and-several-liability point”).
The Relevant Legal Principles
17. The first issue to be determined by the ET was whether there had been a relevant transfer from the First to the Second Respondent for TUPE purposes: unless the Second Respondent was thus potentially liable in respect of the Claimant’s employment, she could suffer no hardship if she was not permitted to add a claim against that entity. The effect of a relevant transfer on contracts of employment is (relevantly) addressed by Regulation 4 of TUPE:
“(1) Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee.
(2) Without prejudice to paragraph (1), but subject to … regulation … 15(9), on the completion of a relevant transfer -
(a) all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee; and
(b) any act or omission before the transfer is completed, of or in relation to the transferor in respect of that contract or a person assigned to that organised grouping or resources or employees, shall be deemed to have been an act or omission of or in relation to the transferee.
(3) Any reference in paragraph (1) to a person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to a relevant transfer, is a reference to a person so employed immediately before the transfer, or who would have been so employed if he had not been dismissed in the circumstances described in regulation 7(1), including, where the transfer is effected by a series of two or more transactions, a person so employed and assigned or who would have been so employed and assigned immediately before any of those transactions.”
18. Regulation 7(1) TUPE, referred to in Regulation 4(3) above, provides:
“(1) Where either before or after a relevant transfer, any employee of the transferor or transferee is dismissed, that employee shall be treated for the purposes of Part X of the [Employment Tribunals Act 1996] (unfair dismissal) as unfairly dismissed if the sole or principal reason for his dismissal is -
(a) the transfer itself; or
(b) a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce.”
19. Regulation 15(9), also referred to in Regulation 4(3) TUPE and which concerns a failure to inform or consult pursuant to Regulations 13 and 14, provides:
“(9) The transferee shall be jointly and severally liable with the transferor in respect of compensation payable under sub-paragraph (8)(a) or paragraph (11).
20. Turning to the relevant procedural provisions: in most instances, before a claim can be brought in the ET there is a requirement upon a Claimant to contact ACAS under the EC provisions. The relevant legislative provisions relating to the EC procedure are found at section 18A of the Employment Tribunals Act 1996 (“the ETA”), inserted by section 7 of the Enterprise and Regulatory Reform Act 2013. As from 6 April 2014, it is thus provided:
“Requirement to contact ACAS before instituting proceedings
(1) Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter.
This is subject to subsection (7).
(3) The conciliation officer shall, during the prescribed period, endeavour to promote a settlement between the persons who would be parties to the proceedings.
(4) If -
(a) during the prescribed period the conciliation officer concludes that a settlement is not possible, or
(b) the prescribed period expires without a settlement having been reached,
the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective claimant.
(8) A person who is subject to the requirement in subsection (1) may not present an application to institute relevant proceedings without a certificate under subsection (4).
(12) Employment tribunal procedure regulations may (in particular) make provision -
(a) authorising the Secretary of State to prescribe, or prescribe requirements in relation to, any form which is required by such regulations to be used for the purpose of providing information to ACAS under subsection (1) or issuing a certificate under subsection (4);
21. By Regulation 2 of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 SI 2014/254 (“the 2014 Regulations”) the following interpretations are provided, relevant to section 18A:
“prospective claimant” means a person who is considering presenting a claim form to an Employment Tribunal in relation to relevant proceedings;
“prospective respondent” means the person who would be the respondent on the claim form to which the prospective claimant is considering presenting to an Employment Tribunal;
22. The Schedule to the 2014 Regulations then sets out the EC Rules of Procedure (“the EC Rules”). Relevantly, the EC Rules provide as follows:
“Starting early conciliation
1. Satisfying the requirement for early conciliation
To satisfy the requirement for early conciliation, a prospective claimant must -
(a) present a completed early conciliation form to ACAS in accordance with rule 2; or
(b) telephone ACAS in accordance with rule 3.
(2) An early conciliation form must contain -
(a) the prospective claimant’s name and address; and
(b) the prospective respondent’s name and address.
3. (1) A prospective claimant telephoning ACAS for early conciliation must call the telephone number set out on the early conciliation form and tell ACAS -
(a) the prospective claimant’s name and address; and
(b) the prospective respondent’s name and address.
(2) ACAS must insert the information provided under paragraph (1) on to an early conciliation form.
The early conciliation process
5. Contact between ACAS and the parties
(1) ACAS must make reasonable attempts to contact the prospective claimant.
(2) If the prospective claimant consents to ACAS contacting the prospective respondent, ACAS must make reasonable attempts to contact the prospective respondent.
(3) If ACAS is unable to make contact with the prospective claimant or prospective respondent it must conclude that settlement is not possible.”
23. I consider how the EC requirements further impact upon the valid lodging of an ET claim in due course. Where there is a claim before the ET, however, it has a general power to permit an amendment to that claim, as provided by its general power to case manage proceedings under Rule 29 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules 2013”):
“29. Case management orders
The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. The particular powers identified in the following rules do not restrict that general power. …”
24. In Science Warehouse Ltd v Mills UKEAT/0224/15/DA, I ruled that an ET retains the general power to permit an amendment by an existing Claimant in a claim before it, even where this would add a new claim that had not itself been the subject of an EC notification.
25. More generally, the power to permit an amendment to a claim is a matter of judicial discretion to be exercised (per Mummery J, as he then was, in Selkent):
“… in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions.”
26. Selkent provides general guidance as to relevant matters to consider when determining an application to amend an ET claim, providing, relevantly (see pp 842H-844C):
“… the discretion to grant leave is a judicial discretion to be exercised in a judicial manner, i.e., in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions.
(4) Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.
(5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant: (a) The nature of the amendment. Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action. (b) The applicability of time limits. If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, … (c) The timing and manner of the application. An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Regulations … for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”
27. More specifically, Rule 34 ET Rules 2013 provides that the ET may permit any person to be joined in proceedings (or removed if wrongly included); adding such a party:
“… if it appears that there are issues between that person and any existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings …”
28. Determination of an application to add a Respondent is a question of discretion having regard to all the circumstances (see Cocking v Sandhurst (Stationers) Ltd  ICR 650, followed by Gillick v BP Chemicals Ltd  IRLR 437, and Drinkwater Sabey Ltd v Burnett  IRLR 238). Gillick dealt with the question of joinder of a party where they had initially had no opportunity to make representations:
“9. … when an application has been amended by the addition of a new respondent, the new respondent should have an opportunity to apply for review of the decision to allow the amendment …”
29. Upon such application, the ET would then apply the principles laid down in Cocking (Gillick paragraph 9). The approach to the question of amendment in such circumstances is expressly one of judicial discretion (see Cocking), not a matter simply to be determined by operation of any time limit. In exercising its discretion in that regard, however, the ET will first consider whether the unamended claim form complied with the requirements of the ET Rules. If not, there would be no power to amend the claim (Cocking, page 656H-657A).
30. Cocking was determined under the then applicable Rules (as provided by the Schedule to the Industrial Tribunals (Industrial Relations, etc) Regulations 1972). Under the regime laid down by the ET Rules 2013, the ET is bound to reject a claim if not made on the prescribed form or does not contain information as identified by Rule 10, which, relevantly, includes each Respondent’s name and address (Rule 10(1)(b)(iii) and (iv)) and an EC number (Rule (10)(1)(c)(i)). Further, where the claim form provides a name for the Respondent that is not the same as the name of the prospective Respondent on the relevant EC certificate, that is characterised as “a substantive defect”, which will mean the claim will be referred to an Employment Judge, who will reject the claim unless he or she (ET Rules 2013, Rule 12(2A)):
“(2A) … considers that the claimant made a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim.”
31. If a claim is rejected in either circumstances (under Rule 10 or Rule 12), it will be returned to the Claimant with a notice explaining why it was rejected (Rules 10(2) and 12(3)). Such a Claimant can then apply for reconsideration on the basis either the decision to reject was wrong or the notified defect can be rectified (Rule 13(1)). In applying these Rules the ET will seek to give effect to the overriding objective (Rule 2) of the ET Rules 2013, which is to enable ETs to deal with cases fairly and justly; that is, so far as practicable:
“(a) ensuring that the parties are on an equal footing;
(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;
(c) avoiding unnecessary formality and seeking flexibility in the proceedings;
(d) avoiding delay, so far as compatible with proper consideration of the issues; and
(e) saving expense.”
32. Returning to the issues raised before the ET, EJ Heap having joined the Second Respondent to the proceedings under Rule 34, the question was whether the Claimant should be permitted to amend her claim to pursue her complaints against that entity. The ET proceeding on the basis that it should consider this question effectively under its general case management powers under Rule 29 of the ET Rules 2013, applying the guidance laid down in Selkent (see above). Doing so, it is common ground that to the extent the Claimant was thereby seeking to add an out of time claim, there was no rule of law that the ET could not permit such an amendment: it would be a relevant but not determinative consideration (Selkent and Walsall MBC v Birch and Ors UKEAT/0376/10/JOJ per HHJ David Richardson at paragraph 37). Moreover, as these are matters of judicial discretion, there are limited grounds upon which such a decision can be challenged on appeal; Noorani v Merseyside TEC Ltd  IRLR 184:
“32. … These decisions are entrusted to the discretion of the court at first instance. Appellate courts must recognise that in such decisions different courts may disagree without either being wrong, far less having made a mistake in law. Such decisions are, essentially, challengeable only on what loosely may be called [Associated Provincial Picture Houses Ltd v] Wednesbury [Corporation  1 KB 223] grounds, when the court at first instance exercised the discretion under a mistake of law, or disregard of principle, or under a misapprehension as to the facts, where they took into account irrelevant matters or failed to take into account relevant matters, or where the conclusion reached was ‘outside the generous ambit within which a reasonable disagreement is possible’ …”
33. As for the matters that can legitimately be raised by a Respondent’s cross-appeal, the nature of a cross-appeal was addressed by Langstaff P in Basildon & Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14/RN, who opined:
“15. The natural wording, “cross-appeal”, suggests it is an appeal which arises in response to an appeal. … the cross-appeal must arise out of a decision of, or one which arises in any proceedings before, an Employment Tribunal on the same date and on the same occasion as that in respect of which the appeal arises. …”
The Claimant’s Case: the Appeal
34. It is the Claimant’s case that the ET’s determination was fundamentally undermined by its failure to find the date of the transfer. Unless and until there was a transfer the Claimant had no cause of action against the Second Respondent; it only became liable on the point of transfer. If the transfer had taken place after 4 July 2014, joining the Second Respondent would have been premature. Even if the claim against it was pursued out of time, the complexity of knowing the true position was (and note the differing views of the Respondents on this) was a relevant consideration, as EJ Heap had previously accepted.
35. Further, the ET reached its decision assuming a delay was of 57 days (from the EDT until the joinder application); that was wrong: it failed to take account of the statutory extension by reason of the ACAS EC procedure, which meant the delay was only 21 days after the time period expired. Although the Claimant had not made this point below, the ET had the EC certificate on file and should not have calculated the period of delay without reference to it. More generally, the ET failed to apply Selkent principles and/or reached a perverse conclusion: (a) because it incorrectly held there was no explanation for the delay when a proper reason - the lack of clarity as to whether/when a transfer had occurred - was advanced by the Claimant (an explanation accepted by EJ Heap); (b) because it gave undue prominence to the expiry of the primary limitation periods; (c) because it failed to recognise the delay was 21 days not 57; and (d) because it failed to appreciate the application to amend was made at an early stage.
36. Finally, the conclusion on hardship was perverse. The Second Respondent suffered no injustice or prejudice other than not being able to run a limitation defence. The Claimant had lost any right to bring a claim under Regulations 4 and 7 of TUPE. Hardship was all one way.
The Claimant’s Case: the Cross-Appeal
37. None of the points raised by the cross-appeal had been taken below, and the Second Respondent should not be permitted to run them now.
(1) The Procedural Points
38. Specifically, on the question of EC compliance, there was a particular difficulty in determining whether there had been compliance for the purposes of the original ET1; the EAT did not know what had happened below, albeit it could assume the ET must have taken the decision not to reject the claim. That decision was not the decision that was the subject of the current appeal and so could not constitute a valid cross-appeal (Weerasinghe). Any right of challenge by way of appeal would have arisen at an earlier stage and was out of time.
39. Even if the Second Respondent was entitled to raise the issue by way of cross-appeal, its argument seemed to be that the ET was unable to correct or overlook any error in naming or specifying the address of a Respondent on an EC certificate and that Rule 12(2A) of the ET Rules 2013 could only relate to the naming of the Respondent in the ET1. That could not be right, as it would mean there was no means of correcting errors in the EC certificate.
40. As for the issue of compliance with EC requirements in respect of the Second Respondent, assuming the original ET1 had been validly lodged and not rejected there was no requirement for the Claimant to comply with the EC procedure when applying to join the Second Respondent, thus no question arose as to whether the Second Respondent had been correctly identified on the EC certificate (although the Claimant contended she had done sufficient in her notification to ACAS on 1 September 2014 in any event). The question of amendment to add the claim against the Second Respondent was, by analogy with Science Warehouse, one for the ET’s discretion; there being no difference between joining a Respondent and adding a new claim for these purposes. A prospective Claimant was someone who has yet to bring a claim; this Claimant had already done so. Whether she had previously named the proposed new Respondent in her EC notification might be relevant if the ET considered she was amending rather than commencing a new claim on tactical grounds, but it was hard where that went in terms of Selkent discretion. In any event, that was not this case.
(2) The TUPE Regulation 4(3) Point
41. This had not been put in issue below; the ET was entitled to assume liabilities transferred to the Second Respondent.
(3) The TUPE Regulation 15, Joint-and-Several-Liability point
42. It was accepted the ET erred in assuming liability for breach of any consultation requirements under TUPE had transferred entirely to the Second Respondent. Regulation 15(9) makes plain that the transferor and transferee are jointly and severally liable. The ET had not been obliged to deal with this point and it remained open to the Second Respondent to contend that liability under Regulation 15 lay with the First Respondent.
The Second Respondent’s Case: the Appeal
43. The ET had reached a permissible decision that the application to add claims against the Second Respondent should not be permitted. Lack of clarity as to the transfer date was irrelevant; the trigger for all but the Regulation 15 claim was the EDT. Although the ET failed to address the relevance of the transfer date for the Regulation 15 claim, this case had still been brought against the First Respondent in time; lack of clarity as to the date of the transfer could not explain why it had not also then been brought against the Second Respondent. More generally, the earlier view of EJ Heap was irrelevant; this ET was considering the issue afresh and concluded the Claimant could have joined the Second Respondent from the outset notwithstanding any lack of clarity as to the transfer date since she believed TUPE applied and knew the Second Respondent was to be the transferee: this was the whole thrust of the ET1, which was drafted by solicitors. The absence of explanation for failing to lodge any claim against the Second Respondent in time was a relevant consideration; the ET was entitled to conclude that no good explanation had been provided.
44. The ET was, further, correct in not having regard to an extended period by operation of ACAS EC as the Claimant had not validly complied with the EC process in respect of the Second Respondent. It correctly assumed a 57-day delay: the period the Second Respondent had calculated in its ET3 and to which the Claimant had not objected. The ET also correctly concluded there was no basis for an extension of the primary time limit. It did not give undue prominence to the point; it was a relevant factor to which it was entitled to have regard.
45. On hardship, the Claimant was in reality pursuing a perversity appeal. The ET correctly considered the relative hardships, including the extent to which the Claimant would be deprived of a remedy if the Second Respondent was not a party to the proceedings, but that was not the only issue. The ET was also bound to consider the hardship suffered by the Second Respondent, albeit that was limited to its being denied the right to rely on the time limit.
The Second Respondent’s Case: the Cross-Appeal
(1) The Procedural Points
46. Even if the appeal were allowed, the decision should be upheld because the Claimant had failed to comply with the EC procedure. Accepting these were not matters argued by either Respondent before the ET; as made clear in Cocking, if the original claim did not comply with the requirements of the ET Rules there would be no power to then permit an amendment. Under the current regime, that meant, where the proposal was to add a new Respondent, section 18A ETA had to be satisfied both in respect of the original claim and also in relation to the new Respondent. On the original claim there was an error on the EC certificate, in naming the First Respondent, which was incapable of rectification; Rule 12(2A) ET Rules 2013 could not assist the Claimant on this point; it did not permit the rectification of the EC certificate.
47. In any event, the importance of correctly naming the Respondent was such that an error in this respect was not minor. This was consistent with the requirement in the EC Rules for a separate EC certificate for each prospective Respondent. Requiring a Claimant to comply with EC when seeking to add further Respondents was consistent with the language of section 18A, and the EAT’s Judgment in Science Warehouse did not rule otherwise. Even if not determinative of the application, the question of EC compliance was a relevant matter in the exercise of the ET’s discretion to permit an amendment.
(2) The TUPE Regulation 4(3) Point
48. The ET had erred in holding that the Claimant’s employment and pre-transfer liabilities transferred from the First to the Second Respondent. Such a conclusion would require the ET to first determine whether the Claimant had been employed by the First Respondent immediately before the relevant transfer (or would have been if not dismissed in circumstances described in Regulation 7(1) TUPE, as to which the Claimant had put no positive case). The ET made no finding as to date of transfer; so, the Claimant could not rely on that as supporting a case that she was employed immediately before the transfer.
(3) The TUPE Regulation 15 Joint-and-Several-Liability Point
49. The ET erred in concluding Regulation 15 liability had passed to the Second Respondent; any such liability would be held jointly and severally by the two Respondents.
Discussion and Conclusions
50. Although the Second Respondent’s cross-appeal is contingent upon the success of the appeal, in explaining my reasoning, it is convenient that I address it first.
(1) The Procedural Points
51. By its first ground of cross-appeal the Second Respondent contends the ET had no jurisdiction to consider the proposed amendment because the original claim did not comply with the mandatory requirements of EC procedure and/or it had not been validly complied with in respect of the Second Respondent, which meant that the amendment could not be permitted. Alternatively, these were potentially relevant factors, to which the ET failed to have regard. In turn, the Claimant questions whether this point is even open to the Second Respondent by way of cross-appeal: as the name suggests, a cross-appeal should challenge the same decision as that put in issue by the appeal (and see paragraph 15 Weerasinghe, supra).
52. On the original claim - brought against the First Respondent alone - the Second Respondent questions whether the EC procedure was validly complied with as the certificate did not give the correct name for the prospective Respondent. Accepting Rule 12(2A) ET Rules 2013 permits an Employment Judge to decide not to reject an ET claim, where there is a minor error in naming the Respondent on the EC certificate and ET1, this cannot help the Claimant if she failed to comply with the requirement to include the prospective Respondent’s name and address for the purposes of Rule 2(2)(b) of the EC Rules. Ms Masters did not shrink from the implication of this argument: if a prospective Claimant makes an error in notifying ACAS of the prospective Respondent’s name and or address - no matter how minor the error and regardless of any explanation (which might include entirely reasonable bewilderment as to the correct legal title or full address of the prospective Respondent in a TUPE context) - there is no means by which the ET can correct the error; the Claimant has failed to comply with EC requirements and any subsequent ET claim must be rejected, no matter when the point is raised.
53. If that is correct, EC risks giving rise to the kind of technical legal arguments that beset the abandoned statutory discipline and grievance pre-action requirements under the Employment Act 2002. It is therefore worth spending a little time considering whether the approach urged by the Second Respondent really has any merit before returning to the question whether it is a point that can even be taken on this appeal.
54. It is right that section 18A ETA requires that a prospective Claimant must provide prescribed information to ACAS before presenting an application to the ET. This will include the prospective Respondent’s name and address (see Rule 2(2)(b) EC Rules; Rule 3(1)(b), if the information is given orally). The requirement is not for the precise or full legal title; it seems safe to assume (for example) that a trading name would be sufficient. The requirement is designed to ensure ACAS is provided with sufficient information to be able to make contact with the prospective Respondent if the Claimant agrees such an attempt to conciliate should be made (EC Rules, Rule 5(2)). I do not read it as setting any higher bar.
55. At times in oral argument, Ms Masters suggested this requirement is to protect the Respondent’s right to engage in the EC process, although, when questioned, she accepted that would be putting it too high. I would go further and suggest that such a characterisation of the position would demonstrate a fundamental misunderstanding of the EC process. EC builds in an opportunity for pre-claim conciliation, but, other than the acknowledgement of that opportunity by means of the notification requirements, it does not oblige a prospective Claimant to engage with the process in any substantive sense, still less does it give any rights to the prospective Respondent (notably, any contact with the prospective Respondent is conditional upon the Claimant’s consent; the Respondent has no “right” to EC as such). The minimal notification requirements, as I read them, are thus consistent with the general aims of EC. There is no suggestion that the process was intended to set any greater threshold for a Claimant before she can lodge ET proceedings. Indeed, the absence of the relevant information does not even result in an immediate rejection of the prospective Claimant’s notification: ACAS may reject such a notification (EC Rules, Rule 2(3)), or it may contact the prospective Claimant to obtain any missing information. That would suggest that, if ACAS considers it has sufficient to permit it to make contact with the prospective Respondent (should the Claimant be amenable to that), it may equally choose not to reject the notification simply because there is a non-material error in providing the prospective Respondent’s name and address.
56. In this case, ACAS did not reject the Claimant’s first notification, and the ET apparently accepted the EC certificate as conclusive of her compliance with the requirements of section 18A; at least, it did not reject the ET1 under Rule 10(1)(c) ET Rules 2013. Should the Second Respondent now be permitted to go behind that? There is no suggestion that the Claimant was intending to mislead, and any error in identification of the First Respondent was plainly minor in nature; it certainly gave rise to no objection by the First Respondent itself. On the face of the EC certificate, the information provided to ACAS was sufficient for it to make contact with the First Respondent. In those circumstances, I consider that the ET was entitled to treat the EC certificate as conclusive in terms of the Claimant’s compliance with her section 18A obligations. Had it thereby erred, the First Respondent might have objected when it was served with the ET1. It did not do so, apparently accepting the ET’s decision not to reject the claim.
57. Even if that analysis is incorrect in any respect, the ET decision in issue would be the decision not to reject the claim. That is not the decision under appeal, and it is not open to the Second Respondent to seek to challenge it by way of this cross-appeal.
58. The next point arising from this ground of cross-appeal is whether the original claim failed to comply with the requirements of the ET Rules 2013 because the name of the Respondent given in the ET1 differed from that on the EC certificate. Again, however, if this point had any validity it should have been taken at an earlier stage. Rule 12(2A) ET Rules 2013 permits that an Employment Judge can decide that a claim should not be rejected where there is a difference in the details given for the Respondent in the ET1 as compared to the EC certificate where the Employment Judge considers the error is minor and it would not be in the interests of justice to reject the claim. This is not a point that was investigated before the ET (which further demonstrates why it is wrong for the Second Respondent to take it now), but I have no reason to think such a decision was not taken: there was a difference in the identification of the First Respondent, but it was plainly minor and there is no suggestion that the interests of justice would dictate that the claim should have been rejected. If the ET’s decision not to reject the claim was to be challenged, it should have been done at a far earlier stage; again, this ground of cross-appeal does not relate to the decision under challenge on the appeal.
59. Even if unable to object to the validity of the initial claim the Second Respondent argues that the Claimant failed to comply with EC requirements in respect of the Second Respondent itself: although she did make a notification to ACAS on 1 September 2014, she did not then use the Second Respondent’s correct title, referring instead to its address, Newholme Hospital. Does that matter? In my view, it does not. Primarily that is because I do not think that the Claimant was required to undertake EC in respect of her application to amend to include a claim against the Second Respondent. In respect of the relevant proceedings, the Claimant was no longer a “prospective Claimant”. She had already presented her claim form; she was now asking the ET for leave to amend it. The question was thus entirely for the ET.
60. That approach has the attraction of being consistent with Rule 34 ET Rules 2013, which specifically addresses the addition or substitution of parties in ET proceedings without reference to any further EC requirements. It also gives effect to the overriding objective by allowing the ET to deal with the case before it in a proportionate manner, avoiding unnecessary formality, seeking flexibility in the proceedings and avoiding delay and expense.
61. Was this, in any event, a relevant matter to which the ET should have had regard in the exercise of its discretion in these circumstances? Before the ET the Second Respondent apparently did not consider it was: it was not a point taken below and I am not persuaded that the ET would have erred in overlooking a minor error in the identification of the prospective Second Respondent in an EC certificate that was (on my view) unnecessary in any event. Again, I take comfort from the fact that this would also be consistent with any sensible reading of Rule 34 ET Rules 2013 and is in keeping with the overriding objective.
62. Should I be wrong in my view as to the lack of any EC requirement upon a Claimant when seeking to join additional Respondents to existing ET proceedings, I am not persuaded it would make any difference. For the reasons I have already given, I do not consider that such an error in the naming of a prospective Respondent means ACAS has to reject the notification. It will be a matter for the EC officer, who, on my reading of Rule 2(3) EC Rules, is entitled to accept the notification notwithstanding some of the relevant information being missing. Similarly, the ET would not itself be bound to reject the claim against the Second Respondent because the name given on the amended claim form was not the same as that on the EC certificate and EJ Heap (who clarified the Second Respondent’s name) plainly did not do so; a course to which the Second Respondent raised no objection when it entered its response.
63. For all those reasons, I reject the first ground of cross-appeal.
(2) The TUPE Regulation 4(3) Point
64. The Second Respondent argues that, in any event, the ET erred in concluding that the Claimant’s employment transferred from the First to the Second Respondent. That could only be the case if the Claimant had been employed by the First Respondent immediately before the transfer, or would have been so employed unless dismissed in the circumstances described by Regulation 7(1) TUPE. For her part, the Claimant argues this was not an issue identified before the ET and the Second Respondent should not be permitted to raise it now.
65. The difficulty with the Claimant’s objection, as I see it, is that the point arises because the ET failed to determine the date of the transfer (an issue expressly raised before it). That was crucial, because liability for the Claimant’s employment would only transfer to the Second Respondent as transferee if the Claimant was employed by the First Respondent and assigned to the organised grouping of employees subject to the relevant transfer immediately before the transfer (or would have been so employed if not dismissed in the circumstances described by Regulation 7(1)); see Regulation 4(3) TUPE. That, as I understand the parties’ respective cases before the ET, was at least partly why the date of any transfer had been put in issue. Specifically, as counsel then acting for the Second Respondent characterised the point in her written submissions before the ET (at paragraph 35):
“(d) If there was a transfer it did not take place until June/July or later in 2014 …
(e) The Claimant was not therefore employed by the Second [sic] Respondent immediately before the transfer (she resigned on 10th April 2014) and accordingly pursuant to Regulation 4(3) TUPE did not apply.”
66. As this went to the question of relative hardship (the Claimant would not have suffered any particular hardship if it was found that liability for her employment had not transferred), it was plainly a relevant question for the ET to determine. The cross-appeal makes a valid point: without properly engaging with this question, the ET erred in assuming liability necessarily transferred to the Second Respondent. I allow the cross-appeal on this ground.
(3) The TUPE Regulation 15 Joint-and-Several-Liability Point
67. The Second Respondent further contends the ET erred in assuming liability for breach of any TUPE consultation requirements transferred entirely to it when Regulation 15(9) makes plain that transferor and transferee are jointly and severally liable. The Claimant agrees the ET erred in making this assumption but contends it is a point that could be taken later by the Second Respondent; it was unnecessary for the ET to determine it at this preliminary stage.
68. Again I disagree with the Claimant. The point went to relative hardship; the fact that the liability was shared between the two Respondents was a relevant matter for the ET when considering this application to amend. I also allow the cross-appeal on this ground.
69. Turning then to the appeal, as a preliminary observation, I note that the ET’s Judgment does not make entirely clear how it was approaching its task: was it doing so as a reconsideration of EJ Heap’s earlier Order, or did that Order (which joined the Second Respondent to the proceedings) stand but with an outstanding question arising as to whether the application to amend (to pursue the actual complaints against the Second Respondent) should be permitted? Whilst it would have been preferable if the ET’s reasoning made clear how it had approached its task, it is common ground before me that no issue arises. Both parties agree the ET was properly engaged in an exercise of judicial discretion as to whether or not the claim should proceed against the Second Respondent. Whether under Rule 34 or Rule 29, the test is essentially the same, as are the limitations on any challenge by way of appeal. Further, albeit subject to the Second Respondent’s EC point on the cross-appeal (as to which, see above), the parties agree that the ET’s exercise of discretion was governed by the principles laid down in Selkent. Both equally agree that the relative injustice and hardship in refusing or granting an amendment must be paramount, although there are other relevant factors, namely the timing and manner of the application, the extent to which the amended claim is out of time and the explanation for the delay. Where the application is to add a claim otherwise out of time, they further concur that there is no rule of law that an ET cannot permit such an amendment; it is a relevant but not determinative manner (Selkent; Walsall).
70. Equally, both parties are in agreement that, in this case, the Claimant’s failure to provide an explanation was only one factor and, by itself, could not be determinative. That said, it is the Claimant’s case that the ET ought not to have found that she did fail to provide an explanation. Her explanation was that the position regarding the existence of any transfer was complicated and she should not be criticised for failing to include the Second Respondent from the outset.
71. Whilst I appreciate the difficulty facing the Claimant - she was not given a very clear picture of what had taken place and may not have known the precise date of any transfer - I do not think the ET can be criticised for failing to find that the complexity of the position was the explanation for her failure to include a claim against the Second Respondent from the outset. On the contrary, as the ET found:
“28. … the ET1 does everything to involve the Second Respondent as transferee save for actually adding them as a Respondent.”
72. Given how the Claimant put her case in her ET1, that was a permissible conclusion. Although the Respondents may have found the point difficult to concede, the Claimant seems to have been clear that there was a TUPE transfer. Moreover, having seen the First Respondent’s ET3 it is hard to see how that meant that the Claimant was then better informed as to the possibility of a TUPE transfer to the Second Respondent than she had been when originally submitting her ET1. Whatever the complexity of the position, the ET was entitled to find that this did not explain why the Claimant had not brought her claim against the Second Respondent in time, and I would not allow this appeal on the basis that the ET erred in this regard.
73. The Claimant next complains that the ET erred in determining that her delay was of 57 days. Relying on the extension to the time limit as a result of EC, the Claimant says it was significantly less than that. That, of course, would assume there was an obligation on the Claimant to engage in the EC process in respect of the Second Respondent. For the reasons I have already given in relation to the cross-appeal, I do not accept there was. That being so, I cannot see there would be any further extension of time. In any event, however, I cannot see where the point goes. The ET expressly found the delay (even if 57 days) was not significant. That was not the basis for its decision; the appeal in this respect is academic.
74. What the appeal really comes down to is the Claimant’s contention that the ET failed to apply the Selkent principles and/or reached a perverse conclusion, in particular in giving undue prominence to the expiry of the primary limitation periods, failing to acknowledge that the application was made at an early stage, and failing to properly assess the balance of hardship.
75. It is fair to say that much of the focus of the ET’s reasoning is on the Claimant’s failure of explanation for not including the Second Respondent from the outset. For the reasons I have explained, I do not think it erred in concluding there was a lack of explanation. The difficulty is that the ET seems to elevate this to being determinative as to how its discretion should be exercised, and, as the parties before me agree, that would be putting the point too high.
76. It is, however, also fair to recognise that the ET’s reasoning does not stop with the question of explanation. Thus, for example, having observed there was no explanation for the delay in seeking to join the Second Respondent, the ET went on to make clear that the delay itself gave rise to no particular hardship; it was not a significant factor (see paragraph 35). More specifically, the ET expressly went on to address the question of relative hardship. On its (albeit erroneous; see my consideration of this point on the cross-appeal above) approach to the question of the Second Respondent’s potential liability under TUPE, by refusing to permit the amendment, the ET understood that it was shutting the Claimant out of otherwise valid claims relating to the termination of her employment. On the other hand, as Ms Masters accepted in oral argument, the only hardship identified in respect of the Second Respondent was that it would not be able to take a point on the limitation period. On that basis, and allowing that balancing of respective prejudice must be paramount, the ET’s refusal to permit the amendment does seem perverse and thus invites further scrutiny.
77. On undertaking that more detailed analysis, the ET’s error becomes apparent. The flaw in its reasoning is that it permits the time limit issue - the only matter the Second Respondent could point to as giving rise to any potential hardship - to outweigh all other factors, including the denial of any determination of the merits of the Claimant’s claims. That approach privileges the issue of time above any other consideration; it makes it determinative. There may be cases where the time limit issue has greater weight because that delay otherwise causes prejudice to the Respondent. That, however, is not (on the ET’s findings) this case. The erroneous approach adopted by the ET in this regard may also explain why its formal Judgment stated its conclusion as being to strike out the Claimant’s claims against the Second Respondent (as having been brought out of time), rather than allowing the Second Respondent’s application for a review of EJ Heap’s Order and/or refusing the Claimant’s application to amend.
78. In my judgment, the ET’s conclusion on the application to amend thus cannot stand: it erroneously permitted the time limit issue to outweigh the injustice it had found would be suffered by the Claimant, who would be denied the ability to pursue otherwise legitimate (on the ET’s findings) complaints against the Second Respondent. I therefore allow the appeal.
79. Having permitted the appeal to succeed, I return to the points raised by the cross-appeal. Given what I have found to be an erroneous assumption on the part of the ET in terms of the Second Respondent’s potential liabilities under TUPE, that plainly raises relevant considerations going to the question of relative prejudice on the application to amend. Adopting a proportionate approach, I consider that the appropriate course at this stage is to permit the parties a further 21 days from the handing-down of this Judgment to lodge written representations on the question of disposal (if unable to agree) and I shall then determine that issue on the papers unless it appears necessary to list a further hearing on this point.