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Mo Sethi QC Wins Appeal on Correct Approach to Reconsideration Applications

26.03.21

On 26 March 2021 the EAT (per His Honour Judge James Tayler) handed down judgment in T W White & Sons Ltd v White (UKEAT/0022/21/VP & UKEAT/0023/21/VP) in which Mohinderpal Sethi QC represented the successful appellant employer.

In this case, the employer applied for reconsideration of a liability judgment under Rule 72 of the ET Rules 2013. The ET postponed the reconsideration hearing due to the ill-health of counsel and re-listed the hearing. However, the ET then decided at a preliminary hearing that the application for reconsideration should be determined on paper (without an oral hearing), that the re-listed hearing be converted to a remedies hearing, and that the employer’s application for permission to adduce expert evidence on remedies be refused. The EAT granted permission to appeal and listed the appeal for an expedited hearing. The employer applied to the ET to stay the case management order which was the subject of the permitted and expedited appeal, but the ET refused to stay its directions. The EAT also permitted this appeal to proceed on an expedited basis and be heard at the same time.

HHJ James Tayler reviewed the authorities and provided valuable guidance on important areas of case management principles and practice including:

1. The mandatory structured process which must be followed for reconsideration applications under r72.
2. Whether an event causing delay in litigation is a material change in circumstances justifying an earlier case management order being varied.
3. If such a delay was a material change in circumstances, whether the interests of justice required that the reconsideration hearing should no longer take place and the application be determined instead on the papers.
4. The correct test for permission to adduce expert evidence on remedy.
5. Whether, and in what circumstances, the ET should stay case management directions, where the lawfulness of the directions are themselves the subject of a permitted and expedited appeal listed to be heard imminently.

CLICK HERE to read the full judgment.

Mohinderpal Sethi QC was instructed by Hamish Cameron-Blackie of GBH Law Limited.

Mohinderpal Sethi QC is Co-Head of Employment and Vice-Chair of the Employment Law Bar Association. He is highly ranked in all leading directories for his expertise in trial and appellate advocacy in business protection, employment, discrimination and partnership litigation.

“Terrifically bright, he’s an absolutely fantastic advocate and very personable. Very hands-on, very tactical and a strategic team player. An advocate with stacks of experience of handling High Court injunctions, he knows what the objectives are in a case and how to get there.” (Chambers & Partners 2021)

In 2021 he will appear in the first ever leapfrog appeal from the EAT to the Supreme Court in Wong v Basfar [2020] ICR 1185, [2020] IRLR 248, representing the Kingdom of Saudi Arabia in a landmark appeal on diplomatic immunity under the Vienna Convention on Diplomatic Relations.