England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Scott Baker)

		Royal Courts of Justice Strand London WC2 Friday 13th July, 2001

1. LORD JUSTICE SEDLEY: Mr Egbaiyelo, who has appeared before me in person today and has presented his case, if I may say so, with clarity and with courtesy, was dismissed in December 1991 from his post with the National Association of Citizens Advice Bureaux. He lodged an internal grievance about the way he had been dealt with. A panel of NACABx found that although it had not been caused by his race, as he alleged and believed it had been, he had been denied proper process in four respects of which he complained. The panel consequently recommended payment of a sum of money in compensation.
2. Jumping forward from then to the present proceedings, Mr Egbaiyelo now seeks permission to appeal to the Court of Appeal against the refusal of the Administrative Court to allow him to seek judicial review of five things. The first is the original decision of NACABx to dismiss him. The second is the dismissal by an Industrial Tribunal of a claim which he lodged in April 1992 for redress, but which was at least ostensibly withdrawn later that year. The third is the dismissal by the Employment Appeal Tribunal (presided over by Kirkwood J) of his appeal against the dismissal of his claim by the Industrial Tribunal. That was in July 1998. The fourth is the striking out by Judge Cowell in January 2000 at the Central London County Court of an action for breach of contract and negligence brought by Mr Egbaiyelo in 1997. The fifth is the refusal by Judge Cowell of permission to appeal to the Court of Appeal against his decision.
3. Central to his submissions today has been Mr Egbaiyelo's belief that the Employment Appeal Tribunal and the County Court ought, both as a matter of fundamental justice and pursuant to the overriding purpose of the Civil Procedure Rules, to have conducted a face to face hearing at which each side could put its case to the other and cross-examine the other about what had happened.
4. I have to say, with regret, because Mr Egbaiyelo has been out of work from that day to this, that this application is not one which is capable of succeeding. I will give my reasons, but I should say right away that, as Mr Egbaiyelo is well aware, if I were to give him permission either to appeal or to continue the application for judicial review in the Administrative Court in a situation in which, as I shall explain in a moment, he would be bound to lose, all I would be doing would be exposing him to a very large further bill of costs. He would not thank me for it.
5. Let me turn to the reasons why on no score is this application capable of succeeding. First, the National Association of Citizens Advice Bureaux is not a public body. It is not open to judicial review. Mr Egbaiyelo's relationship with it was a contractual relationship.
6. Secondly, the correct forum in relation both to unfair dismissal and to race discrimination was, as Mr Egbaiyelo rightly appreciated at the time, the Industrial Tribunal.
7. Thirdly, however, Mr Egbaiyelo's Industrial Tribunal application was lodged about a month out of time, in April 1992. Much more importantly Mr Egbaiyelo had already compromised his claim in March 1992 by accepting the sum of £3,000 in full and final settlement; something which is always open to litigants and which indeed is expressly contemplated by the Race Relations Act as an exception from the general prohibition upon contracting out of a person's right not to be the victim of discrimination.
8. Fourth, and no doubt because of the history I have recounted, the originating application was in September 1992 withdrawn by Southwark Law Centre, apparently acting upon Mr Egbaiyelo's behalf, with the result that the Industrial Tribunal formally dismissed the application.
9. Fifth, it was not until March 1998 that, according to Mr Egbaiyelo, it came to his knowledge that the application had been withdrawn. He consequently went to the Industrial Tribunal to seek a review. By then the Tribunal had filed all its papers and it was suggested that in those circumstances Mr Egbaiyelo should appeal to the Employment Appeal Tribunal. This he did. But the Employment Appeal Tribunal was faced with the simple facts, first, that there was no intelligible explanation of how even if the notification had taken six years to reach him, Mr Egbaiyelo had not set about finding out in the meantime what was happening to his claim; secondly, that there was no way in which legally that claim could have survived the settlement into which Mr Egbaiyelo had entered in March 1992.
10. Sixth, and in any case, the Employment Appeal Tribunal is a superior court of record. It is not open to judicial review by the High Court, and for that reason alone the endeavour to appeal against its decision cannot succeed.
11. Seventh, the County Court, unlike the Employment Appeal Tribunal, is in theory open to judicial review, for example where it exceeds or refuses to exercise its jurisdiction. But this is not such a case. It was exercising, and properly exercising, its jurisdiction, not in the way that Mr Egbaiyelo has taken it to be, namely by giving summary judgment under Order 9, rule 14 of the County Court Rules (as they were), but by exercising its inherent power to strike out a claim which has no prospect of success. If the County Court judge erred in the way that Mr Egbaiyelo wishes to argue he did in striking out his claim, then Mr Egbaiyelo's correct course was to appeal, if he could get permission to do so. The County Court judge refused him permission to do so and set out his reasons. So far as the record goes, no attempt was made to renew that application to this court. Both the judges who dealt with this case in the Administrative Court (Maurice Kay J on the papers and Scott Baker J in open court) pointed this out.
12. I do not know if Mr Egbaiyelo took this to be an indication that he should appeal their decisions to this court. What they were in fact saying was that if Mr Egbaiyelo had had any remedy against the County Court judge's decision to strike out his action, it was by way of appeal to this court directly.
13. Apart from the contract matters and the discrimination matters with which I have dealt, there was a claim before the County Court for negligence in giving a reference. Mr Egbaiyelo had, in mid-1994, applied to the London Borough of Camden for a job. He claimed in these proceedings that the reference had been given negligently and so had resulted in his not getting the job. Counsel for NACABx had very properly drawn the judge's attention to authority for the proposition that if there is true negligence in what is put into a reference and it results in that kind of damage to the employee, he may have a claim. But when I look, as the County Court judge did, at the reference that was given, it is apparent that while it was unwelcome to Mr Egbaiyelo because it advised Camden that they should monitor him during his probationary period, there is no possible way in which it could be said to be negligent. It contains no misstatement of fact. It does not mislead in any way. It is a legitimate opinion to convey, and it would arguably have been irresponsible for NACABx not to convey it if it was their true opinion. So the judge was clearly right in saying that the negligence action could not succeed.
14. As to the Race Relations Act claim, that is entirely within the jurisdiction of the Industrial Tribunal and cannot be pursued in the employment field in the County Court.
15. It follows that this application of Mr Egbaiyelo's must be refused because the challenge which he wants to bring by way of judicial review could not succeed, and would only involve him in another, I suspect crippling, bill of costs.
16. It also the case - and I would like Mr Egbaiyelo to be aware of this – that the reason for my refusing him permission is not simply that he has followed the wrong route in the maze which the law presents to people who are not lawyers (and I have to say to lawyers as well from time to time). It is not for a technical reason, in other words. It is because, for the reasons I have given, whichever route Mr Egbaiyelo had followed, Industrial Tribunal, County Court, Queen's Bench, Court of Appeal, Employment Appeal Tribunal, all would have led, and all did inevitably lead, to the same outcome, namely the very straightforward one that he could not first compromise his claim in the way that was done and then sue for compensation. He may find that unwelcome, but I am afraid it is the fact and the law. That is the underlying reason why I refuse his application today.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)