The Court of Appeal has refused Olumide Smith’s application to introduce new evidence in his appeal over employment discrimination complaints against Cisco Systems Internetworking (Ireland) Limited. The court made no order on his separate motion to extend the time to appeal a High Court decision refusing discovery.
Mr Smith had complained to an adjudication officer that his former employer discriminated against him on grounds of race in relation to pay and other matters, including dismissal and promotion. The officer found some complaints were outside the statutory time limit. The Labour Court then held it had to consider first whether discrimination occurred within the relevant period before assessing whether earlier events formed part of a continuing pattern.
Mr Smith appealed the Labour Court’s decision to the High Court on a point of law. On 13 November 2020, Mr Justice Meenan dismissed that appeal, finding no point of law that would allow it to succeed. The substantive appeal from that decision was listed for hearing on 14 November 2022.
In advance of that appeal, Mr Smith sought leave to present fresh evidence. The Court of Appeal said the appeal was confined to whether the Labour Court had made an error of law; it was not a rehearing of the underlying discrimination complaint. Under the applicable test, fresh evidence on an appeal from a final decision must meet three requirements: it must have existed at the time of trial and not have been obtainable with reasonable diligence; it must probably have an important influence on the outcome; and it must be apparently credible.
The judgment said Mr Smith did not identify evidence meeting that test or explain why it had not been presented earlier. The only material that might qualify as evidence was screenshots from a website describing him first as managing director and later as former managing director of Cisco IronPort Systems LLC. The judge said the publisher and publication dates were not identified, and the screenshots were unlikely to affect an appeal limited to a point of law. The court refused leave to adduce new evidence for the substantive appeal.
Separately, Mr Smith had sought an extension of time to appeal a 23 January 2019 High Court refusal of discovery. The Court of Appeal said that if time were extended, the appeal would concern an interlocutory order, for which further evidence could be given without special leave. Whether material was relevant to the extension application would be assessed by the panel hearing it. The judge made no order on that motion in this judgment and said the filed papers did not require an order permitting their use. Costs were to be addressed on 14 October 2022.