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J D Scott v. Commissioners of the Inland Revenue


Court of Appeal

The appellant (S) appealed against the assessment of damages and a refusal by the registrar preventing him from amending his notice of appeal. S was dismissed by the Inland Revenue. He issued proceedings, and the employment tribunal upheld his claim and awarded damages. The award was based on the assumption that S would have retired at age 60. S appealed against the award of damages. Before the appeal was heard, S learned that the Inland Revenue had changed its retirement policy. The net result was that males could remain in employment until age 65. Accordingly, S sought to amend his notice of appeal. The registrar refused to allow the amendment. As S was on holiday at the time, his counsel did not appeal the registrar's refusal. Consequently, the hearing at the Employment Appeal Tribunal concentrated exclusively on the assessment of damages.

HELD: The Revenue should have disclosed the change to its retirement policy as soon as it was introduced. Had it done so, the matter could have been determined at the tribunal hearing. Had S been aware of the change to the retirement policy, his case might have been advanced on an different footing. In any event, the facts showed that S had no intention of retiring at 60 and that he intended to work until 65. That being so, the appeal against the registrar's decision was bound to succeed. Moreover, the appeal itself, had it been entertained by the EAT, would have succeeded. In the instant case, S's counsel erred in thinking that he could not appeal the registrar's decision. The facts showed that the matter was within his implied authority. Therefore, the matter could not be considered for the first time by the instant court. As regards the issue of quantum, the tribunal's assessment could not be faulted for the most part. However, its award for psychiatric damage was too low. Consequently, that issue was remitted to the tribunal for assessment. In addition, the matter of costs was also remitted. Given the remission, it would be open to S to amend his claim form and so as raise the issue of future loss at the tribunal. As the factual possibility of continuing with the Inland Revenue to age 65 was known, it would be available to be canvassed at the resumed hearing.

Appeal allowed.

[2004] ICR 1410,[2004] IRLR 713

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