Appeal No EAT/538/99  
                                                                                                                                       EAT/563/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                  At the Tribunal
	                On 14 June 2001
Judgment delivered on 29 June 2001

Before
HIS HONOURABLE MR JUSTICE NELSON
MR A D TUFFIN CBE
PROFESSOR P D WICKENS OBE

DR V VALKOVA	APPELLANT

BENEFIT AGENCY MEDICAL SERVICES	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR WILLIAM BIRTLES
(of Counsel)
Instructed by:
Messrs Charles Russell
Solicitors
8-10 New Fetter Lane
London EC4A 1RS
	
For the Respondent	MR TOM WEISSELBERG
(of Counsel)
Instructed by:
Office of the Solicitor
Dept of Social Security
Dept of Health
Room 536, New Court
48 Carey Street
London WC2A 2LS	

MR JUSTICE NELSON
1	These are appeals against two decisions of the London North’s Tribunal arising out of hearings before them on the 3rd and 4th of March 1999. The first decision, of the 3rd March 1999 ordered that the Appellant should show cause why the Tribunal should not strike out her claim on the grounds that she had conducted it in a frivolous and vexatious manner, and the second decision dated the 9th of March 1999 ordered that her claims be struck out on the grounds that they had been conducted frivolously and vexatiously and that she should pay the Respondents £100 in costs for her unacceptable and unreasonable conduct over the 3rd and 4th of March 1999. A full hearing of the appeal in relation to both these decisions was ordered on the 24th January 2001.

The facts.
2	The Appellant commenced employment with the Respondent on the 31st May 1995 as a medical adviser. She was dismissed from that employment with effect from the 17th December 1996 on the grounds of inefficiency. She submitted an originating application to the Tribunal on the 14th March 1997 complaining about her dismissal. This was subsequently amended so as to claim disability discrimination, breach of contract and unauthorised deductions from wages. The Tribunal decided that the claim for disability discrimination could proceed but the claims for breach of contract and unlawful deduction were outside the three months time limit and jurisdiction to hear those claims should be decided at the full merits hearing. This decision was made on the 10th March 1998.

3	The Appellant made several applications for adjournments including two on the grounds of bereavement made on the 25th June 1998 and the 15th July 1998 and three on the grounds of her own ill-health on the 14th July 1998, the 28th August 1998 and the 5th January 1999. Virtually contemporaneously with that last application to adjourn the Respondents also requested a postponement on the grounds that their chosen counsel was not available for the hearing date of the 5th January 1999. The Respondent’s application was refused but the Appellant’s granted and the hearing fixed for the 3rd and 4th of March 1999.

4	An application made by the Appellant for an adjournment on the 17th December 1998 on the grounds that she did not have legal representation and had difficulty with child care arrangements had been refused but all her other applications were granted.

5	In June 1998 the Tribunal was notified by the legal representatives for both parties that the matter had been settled through ACAS but final terms were not in fact agreed and a fresh hearing date was sought on the 15th June 1998. On the 26th October 1998 the Appellant’s solicitors informed the Tribunal that she did not wish to accept the terms of settlement offered and in consequence they no longer acted for her.

6	The delay in this matter reaching a full hearing until March 1999 at least from about June 1998, appears to be due to bereavement, the Appellant’s ill-health, and unsuccessful attempts to settle the matter.  

7	On the 3rd March 1999 the Appellant appeared at the Tribunal with her daughter and explained that she could not proceed further, firstly because her mother had become seriously ill and she needed to look after her and secondly because an important witness had gone abroad a day or two ago and would not be back until Easter and thirdly she had not been able to secure legal representation. The Tribunal concluded that in view of the very long delay which had ensued since the claim was first presented to the Tribunal it would not be just to allow yet another postponement and the Appellant was told that she must proceed with her claim that day. She protested at the decision but did eventually proceed with her case albeit reluctantly.

8	At about 11.10 a.m. while an issue on discovery was being resolved the Tribunal called a break to allow the Appellant to telephone her mother to find out how she was. The fact that the Tribunal permitted this course of action indicates that they recognised the Appellant’s concern about her mother’s health. The Chairman’s notes indicate that the result of that telephone call is that the Appellant was told by her mother that she was “bearing up”. It is also recorded in the notes where they recite the Respondent’s submissions that the information was that her mother was OK.

9	When the Tribunal resumed the evidence of the Appellant was completed and the matter adjourned at 1.15 p.m., to resume at 2.15 p.m. when closing submissions on the time issue were to be heard.

10	When the Tribunal resumed the clerk handed in a letter which had been given to him by the Appellant’s daughter at some stage during the luncheon adjournment which read as follows:-       
"I am sorry to inform you that I cannot be present for the afternoon. My mother’s condition is critical. There is no-one to attend - I have to be with her, I have no choice. I will very much appreciate it, if the hearing of the disability discrimination case could be postponed to a later date.
Thank you for your consideration yours sincerely V Valkova (Dr)"

11	It was submitted to the Tribunal that the Appellant’s conduct was unreasonable and that her application should be dismissed. There was no evidence to indicate the nature of the Appellant’s mother’s medical condition and no explanation as to why the Appellant alone had to attend her. The Tribunal indicated that her 17 year old daughter, who seemed capable, could have been sent to look after the grandmother and call an ambulance if necessary. The decision states that the Appellant did not have the courtesy to appear before the Tribunal in person to explain the reasons for her departure and the Respondent submitted that in the circumstances this amounted to frivolous and vexatious conduct.

12	The Tribunal concluded that the Appellant was obviously very unwilling to proceed and very unhappy with the Tribunal’s decision refusing her application for a postponement. They stated that looking at the history of the case there had been a series of incidents in which Mrs Valkova had “sought to defer its progress for one reason or another, mainly for the reasons for her health (not only the subject of her disability claim) and for other reasons as well.” They felt the case had gone on long enough and further postponement would simply result in the matter never being resolved. They therefore ordered that the Appellant should show cause why the Tribunal should not strike out her claim on the grounds that it had been conducted in a frivolous and vexatious manner. They required to see independent medical evidence of her mother’s condition and why it was essential that only she could attend her.

13	Attempts to contact the Appellant by telephone to inform her of this decision were unsuccessful and the order requiring her to show cause was not served on her by courier until shortly before midnight on the 3rd of March.

14	The Appellant attended at the Tribunal the next morning as ordered but clearly had not been able to obtain a medical certificate in view of the fact that the order to show cause had only been served at midnight the night before. The Tribunal record her stated reasons for not attending at the Tribunal on the afternoon of the 3rd of March as being that she telephoned her mother during the lunch break and her mother told her that she was not feeling well and wanted her to come home. Dr Valkova left the Tribunal at once after having instructed her daughter to write out the letter to be handed to the Tribunal clerk. The Tribunal said that they were glad to note that the Appellant’s mother’s medical condition was “slightly better today than it was yesterday”.

15	The Chairman’s notes record the fact that the Appellant attended at 10 a.m. on 4th March and described her mother’s condition as follows:-    
"Mother 84 years. Waiting for hip replacement. Can’t walk without help. Suffers from cystitis, gastric flu. Sick, diarrhoea - flu...
On night of 2 March mother in great pain - bowel problems.
When I went to Tribunal I left mother at home alone. My daughter at school - studying for A levels [but another daughter attended Tribunal on 3rd March].
I phoned at break - mother said she was bearing up. 
At 1.15 I phoned again. Mother said I am unwell. Can you come to me.
My mother is the same - still having stomach problems.
Under no circumstances can I proceed with the case. I am exhausted and anxious and I have to stand by my mother for the next 24 hours."

16	The Tribunal considered the history of the case and the fact that it had been instituted nearly  two years ago and that at one stage the Tribunal had been notified that the claim had been settled through the auspices of ACAS but later informed by Dr Valkova that she had not agreed the settlement negotiated on her behalf and was still negotiating. After a long delay with a number of requests for postponement because of her illness or the fact that she had to look after her children, she informed the Tribunal that she was not prepared to accept the settlement and wished to pursue her claim. The Tribunal then referred to the evidence of Dr Landray, the Appellant’s expert who was unable to attend the hearing, and asked themselves why Dr Valkova had not applied earlier to the Tribunal for a postponement because of his absence when she had known on the 27th of February, the date of his report, that he would not be able to attend to give evidence the following week. They then said:- 

"having considered all these issues very carefully we conclude that Dr Valkova does not really wish to pursue this claim to finality. She had the opportunity to settle it last summer and decided not to do so. She has been given the opportunity to bring the claim to a hearing in January and March this year and does not wish to do so. When we informed her that her application for postponement yesterday was refused, she indicated in the clearest possible manner that she was unwilling to proceed and it was only because she was forced to do so she gave some evidence yesterday morning."

17	The Tribunal were not satisfied that Dr Valkova’s mother’s medical condition was so serious or extreme that it was necessary for her to leave without first seeking permission from the Tribunal or arranging for her daughter to look after her mother and if she was so seriously ill for her to have been taken into hospital. The Tribunal also referred to Dr Valkova’s refusal to allow medical reports to be disclosed to the Respondents and the Tribunal, though she did eventually concede that they should be disclosed. The Tribunal added:- 
"furthermore Dr Valkova has told us that regardless of the outcome, she is not prepared to carry on with the case today. That is another indication to us that she is treating the matter vexatiously."

18	The Tribunal is clearly referring here to the statement by the Appellant recorded in the notes when referring to her mother’s condition that:- 
"under no circumstances can I proceed with the case. I am exhausted and anxious and I have to stand by mother for the next 24 hours."

19	The Tribunal concluded that Dr Valkova did not have the serious intent to pursue her claim but would like it to be postponed yet again which would not be before May or June of that year. They then added:-
"we cannot say of course, but it may well be that come May or June she will have some other reason or excuse for postponing the case. We cannot allow that situation to continue indefinitely. Dr Valkova has had an opportunity to bring her case to finality and she has spurned it, and in spite of her protestations to the contrary, we find that she has set out deliberately to frustrate these proceedings."

20	The Tribunal therefore concluded that Dr Valkova had been acting frivolously and vexatiously within Rule 13(2)(e) in that she had not shown cause to their satisfaction why they should not strike out her claim. They described her conduct over the past two days as unacceptable and unreasonable.
The submissions.
21	These are set out at length in the skeleton arguments but their essential points can be summarised briefly. The Appellant contends that there was no proper basis for making the order to show cause as an analysis of the history showed that the Appellant’s previous applications for adjournments were for valid reasons and, save one, all granted. It was conceded by the Respondent that none of the applications were improper. The Tribunal however regarded the history of the case as indicating that Mrs Valkova had:
 “sought to defer its progress for one reason or another, mainly for reasons of her health.. and for other reasons as well.” 
They were clearly uncertain as to the true extent of the Appellant’s mother’s state of health yet appeared to accept the submission made to them on behalf of the Respondent that the lack of courtesy in appearing before the Tribunal to explain in person the reasons for her departure amounted to frivolous and vexatious conduct. This was not open to them on the facts it is said. Their conclusion that if a further postponement were granted the case would never be resolved was equally unjustified the Appellant submits. In relation to the decision to strike out the Appellant submits that this was perverse, took into account irrelevant considerations such as Dr Landray’s evidence, the refusal to accept settlement and the initial refusal to allow disclosure of medical reports. It also made findings of fact which were incorrect, in particular the finding that the Appellant had told them on the 4th March that her mother was slightly better when the Chairman’s notes reveal that she had described her condition as being the same and requiring 24 hour care from her. The reference to the Appellant having some other reason or excuse for postponing the case, suggesting as it did that the application for an adjournment on the basis of her mother’s ill-health was in itself not wholly genuine, was contrary to the evidence and perverse. As the Appellant herself had told them she was in no state to continue with the case on the 4th of March in view of her anxiety about her mother.

22	The Respondent submitted that the Appellant did not want to proceed so that when her application for an adjournment was refused she ignored that refusal by walking out at lunchtime. Her conduct on the 3rd of March was vexatious and her behaviour in the past had been frivolous. Those were the two bases upon which the claim was properly struck out. Whilst her requests for adjournments in the past had been proper, a series of proper requests can produce a picture which can lead to suspicions. Having become suspicious the Tribunal then concluded, having heard and seen Dr Valkova give evidence that she did not want to bring finality to her claim.

23	The Appellant took the conduct of the case into her own hands after her application to adjourn had been refused by leaving without speaking to the Tribunal. This conduct was vexatious and clearly called for an explanation. Thus the order to show cause was justified.

24	The decision to strike out was also justified on the evidence as the whole picture, including the refusal to accept settlement and disclose the documents together with the delay, indicated no serious intention to pursue the claim and there was no evidence before them that her mother was so ill that she was not able to abide by their refusal to adjourn and continue with the proceedings. An explanation from her was plainly justified, inadequate when given, and the decision to strike out was in no sense perverse and cannot be attacked.
1  The show cause decision.
25	We recognise that having refused her application to adjourn, a decision which has not been appealed, the Tribunal may well, as a first response, have regarded the Appellant’s departure at lunchtime without application to be at least a discourtesy and perhaps a flouting of their earlier order. We also recognise that the Tribunal had the benefit of being able to see and hear Mrs Valkova make her application and give her evidence on the morning of the 3rd of March, which we have not.
26	We are however satisfied that a proper analysis of the chronology and the events of that morning would and should have led them to a different conclusion than that which they reached.

27	Firstly as far as the history was concerned there was no proper basis for concluding that Dr Valkova was seeking to defer the progress of the case so as to prevent it being resolved. The Respondents were not able to point to any improper application for adjournment on any ground and each of the applications on the basis of ill-health were granted. The Tribunal could only draw the inference from those adjournments that the Appellant had been sufficiently unwell to be able to attend whatever she wished about the progress of the proceedings. Any inference to the contrary would be impermissible. The delay of 2 years was extremely unfortunate but on the basis of the evidence before the Tribunal substantially due to the Appellant’s ill-health.

28	In making their decision to show cause the Tribunal did not rely upon the Appellant’s refusal to settle the matter or her initial refusal to disclose medical reports though they did when considering the decision to strike out.  A refusal to accept a settlement does not necessarily indicate frivolous or vexatious conduct, nor does an initial refusal to disclose that which upon material reflection ought to have been disclosed 

29	Secondly in relation to the Appellant’s conduct on the 3rd of March, she informed the Tribunal that her mother was seriously ill and that she needed to look after her. It has been conceded that the application to adjourn was made on three bases, firstly that her mother was very ill, secondly that her witness Dr Landray could not attend and thirdly she didn’t have legal representation, though as the Chairman’s notes only refer to a desire to adjourn because her mother was very ill, it may be concluded that the first of the three reasons, namely her mother’s illness, was the principal reason for the application.

30	The fact that the Tribunal treated it seriously is demonstrated by their permission to the Appellant to ring her mother at 11.10 a.m. in order to ascertain her condition. No further application was made at that time as her mother could be described as “bearing up” or “OK” as the Chairman’s notes indicate. The fact that the Appellant was concerned and that the Tribunal recognised that fact is however clear from their permission to her to make that telephone call.

31	The letter written by her daughter and given to the Tribunal clerk stated that Dr Valkova’s mother’s condition was critical, that there was no-one to attend to her, that she had to with her and that she had no choice. Such a letter could only have been written either because Dr Valkova was very concerned about her mother’s condition or that her mother’s condition which was not serious, was being used as an excuse for her to decline to proceed with her claim.

32	The history did not enable the inference to be drawn that Dr Valkova was deliberately failing to progress the action and hence provided no proper basis upon which the Tribunal could conclude that Dr Valkova was simply using her mother’s health as an excuse to postpone the case even though the Tribunal had not been prepared to do so.

33	Where a party applies to adjourn on the grounds of the ill-health of a parent or child for whom they are responsible and shows concern about the continuing medical condition of that relative a Court should be slow to treat such concerns as other than genuine in the absence of evidence showing that to be so. There was no such evidence here; no proper basis for disbelieving Dr Valkova’s account that at 1.15 p.m. that her mother had become unwell and needed her. The Appellant’s sudden departure at lunchtime in this case clearly calls for an explanation, but that explanation was given in the letter in which it was stated that the condition of her mother was critical and that she needed to be with her. A more detailed explanation was no doubt called for the following day but not on the basis that the Appellant’s conduct was prima facie vexatious given that the history should not have suggested to the Tribunal that there had been any improper applications for adjournments in the past indicating deliberate attempts to prevent the resolution of the proceedings. Unfortunately the Tribunal’s misunderstanding of the history may well have coloured their approach to Dr Valkova’s evidence about the condition of her mother. 

34	The suggestion that the 17 year old daughter could have gone to look after her grandmother was made by the Tribunal  without any investigation of the facts. Was she available? (She wasn’t in fact because she had to attend an ‘A’ level practical exam in the afternoon.) Was she suitable in the circumstances given the nature and seriousness of her grandmother’s condition? The answers to these questions were not known on the 3rd March and not explored on the 4th March. 

35	We are satisfied that there was no sufficient evidential basis to conclude that the conduct of the claims by the Appellant had been either frivolous or vexatious either looking at the history of the claims or at the Appellant’s conduct on the 3rd of March. It was entirely proper for the Tribunal to be concerned about the long delay and indeed the Appellant’s sudden departure and we fully understand why they wanted a more detailed explanation from her. Such an explanation however should not have been on the basis that her conduct had been vexatious but on the basis that the Tribunal needed to know when the case could next be heard. On the basis of the evidence before them the only proper course, as the Appellant submits, was for them to have heard the closing submissions on the time issue on the 4th March or if that proved to be impossible to adjourn the whole matter.

2  The strike out decision.
36	The first matter which the Tribunal should have taken into consideration when assessing the situation on the morning of the 4th of March was that the Appellant had only been served by the courier with the notice to show cause at about midnight the night before. As she had, plainly through no fault of her own, had no opportunity to obtain any medical evidence in relation to her mother’s condition the Tribunal were in no position to do anything other than accept her evidence or give her a further opportunity to obtain such evidence.

37	On any basis a description of an 84 year old woman who couldn’t walk without help, suffering from cystitis, gastric flu with sickness and diarrhoea, was a description of a patient in a serious condition. Dr Valkova’s evidence as to her mother’s condition was given not only as a Doctor, but also as a daughter. It is not perhaps surprising that she was anxious about her mother and felt the need to look after her herself rather than ask anyone else to do so. She could not in any event have been reasonably expected in her anxious state to have been able to present her case to the best of her ability had she continued with her submissions and evidence before the Tribunal.

38	The phone call which Dr Valkova made at the beginning of the lunch adjournment at about 1.15 p.m. appears to have given her real cause for concern about her mother’s condition sufficient for her to say as she did in her letter that she had to be with her and had no choice. The finding of the Tribunal that Dr Valkova’s mother’s medical condition was not so serious or extreme that it was necessary for her to leave without first seeking permission from the Tribunal, or arranging for her daughter to look after her, and their finding that her statement the following day that she was exhausted and anxious and had to stand by her mother for the next 24 hours regardless of the outcome was vexatious seems strikingly harsh.

39	We must remind ourselves that the Tribunal did not have the benefit of the medical evidence which Dr Valkova later obtained which makes it entirely plain that cause for concern by the 4th of March was entirely justified, and hence perfectly understandable the day before. A  doctor’s report states that Dr Valkova’s mother became unwell with cystitis on the 1st March 1999 with her condition worsening that week with the development of diarrhoea and vomiting. She required constant attendance to go to the toilet because of restricted mobility due to a hip replacement and was frail and very ill because of dehydration. With her other illnesses and frailty her condition was life threatening potentially because of fluid loss. She could not be left alone, she could not get to the toilet on her own and was very dizzy because of the dehydration. She needed constant fluid replacement.

40	There is no reason to suppose that had the show cause order been served on Dr Valkova on the 3rd March in time for her to seek a medical certificate, medical evidence of her mother’s worsening condition similar to that noted on the 4th March would not have been obtained. Had such evidence been before the Tribunal it is inconceivable that they would not have adjourned the matter. The time of the service of the order prevented Dr Valkova from obtaining such evidence, and had the Tribunal, as they should have done in such circumstances, accepted Dr Valkova’s evidence they should have been clear that her mother’s condition was sufficiently serious to merit sympathetic attention to her application for an adjournment.

41	The fact that they did not do so was, on the basis of the evidence before them, a serious error in their approach to dealing with the matter. Their decision to strike out the Appellant’s claim was in our unanimous view perverse.

42	In addition to the fundamental error of approach in not accepting Dr Valkova’s evidence the Tribunal made further errors in their approach to the matter. Firstly they noted that the Appellant’s mother’s condition was slightly better when in fact the Chairman’s notes indicated that she was the same and had not shown any improvement since the phone call at 1.15 p.m. on the 3rd March. Secondly the Tribunal should not have treated the refusal to settle the matter as an indication that Dr Valkova did not want to pursue her claim. A refusal to settle may equally give rise to the inference that she wishes her claim to be resolved by the Court irrespective of offers of settlement. There was no proper basis on the evidence before the Tribunal for it to conclude that the Appellant was simply resisting closure of the matter rather than wanting to pursue it to Court when she and her mother were well. Thirdly they relied on her failure to apply for an adjournment earlier in respect of Dr Landray’s unavailability as a ground for concluding that Dr Valkova did not wish to pursue the claim to finality. They did not however note that Dr Landray’s report had only been obtained on the 27th of February 1999 and as on its face it was relevant and helpful to Dr Valkova’s claim was at least as consistent, if not more consistent, with her positively intending to pursue the claim.

43	When the Tribunal considered the history, it appears from the Chairman’s note that they did so in chambers after they had adjourned to consider their decision. They did not then give the Appellant the opportunity to comment upon the adverse view that they had formed. Had they done so she may have been able to correct the view that it demonstrated that she was seeking to avoid finality in the matter.

44	The use of the words “some other reason or excuse for postponing the case” suggests that Dr Valkova’s evidence about the condition of her mother was one of those excuses and hence not genuine. As we have already indicated, this, on the basis of the evidence before the Tribunal at that time, was a misreading of the situation compounded by the additional errors we have set out in this judgment.

45	We are unanimous in our view that the Tribunal’s finding that Dr Valkova had set out deliberately to frustrate the proceeding was perverse, as was their conclusion that she had been acting frivolously and vexatiously and that her claim be struck out.

Conclusions.
46	There was no proper material available to the Tribunal upon which they could have concluded that the Appellant had acted frivolously or vexatiously such as to require her to show cause why her claim should not be struck out. The Tribunal made errors in interpreting the history of the matter and their approach to the Appellant’s evidence as to the condition of her mother. In any event their finding that the Appellant’s conduct was frivolous or vexatious and justified the striking out of her claims was perverse. Accordingly the appeals are both allowed, the matter will be remitted to a fresh Tribunal which should hear evidence in relation to the out of time matters as well as the disability discrimination claims. There is to be a directions hearing by the Tribunal which is to hear the matter and in so far as is practicable the matter should be expedited in view of the length of time which has elapsed since the originating application was served.