England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Tuesday, 16th October 2001

1. LORD JUSTICE MUMMERY: I will ask Lord Justice Sedley to give the first judgment.
2. LORD JUSTICE SEDLEY: Mr Murali - and I stress he is entitled to be so called and not to be simply addressed as Dr, as he was at the Employment Tribunal, because he is a qualified surgeon - has appeared before us today to press his application for permission to appeal. He has done so with conspicuous competence and courtesy which the court appreciates.
3. Mr Murali was on a specialist registrar training programme for overseas doctors. He began in 1996 on a four-year rotation system. It began with a one-year appointment at Greenwich, known as a Type I appointment. Later that year he switched to a fixed term contract which took him from 1st October 1996 to 1st October 1997. That contract was not with any of the three respondents to his eventual claim but with the Eastbourne National Health Service Trust. Starting in September 1997, he sought a review of his training status for which some or all of the present respondents were responsible. That review, despite repeated requests, was declined.
4. The Employment Tribunal to whom Mr Murali eventually went found that the review or appeal procedures related to registrars still in the course of training and not to the past or prospective termination of a fixed term contract, albeit this was under the same training scheme. They considered this to be the case whichever edition of the regulations was looked at - the 1996 or the 1998 edition.
5. Mr Murali, who is Indian by ethnic origin, believed that the refusal was racially motivated. He did not advance any case of racial animus directed at him personally. The comparison he has sought to make is with another overseas trainee registrar who, unlike Dr Murali, had been allowed to move from Type II to Type I training. While if this is correct it may have been an act of discrimination as between him and that other candidate, it is not immediately obvious, in the absence of specific differences of race between Mr Murali and the other overseas trainee registrar, how and why it should be inferred to have been a racially motivated act of discrimination. I mention this as background. It is background and not foreground because the claim brought was never determined on its merits. It was found to have been brought out of time. Further, it was found that there were no circumstances making it just and equitable to extend what was otherwise the statutory limitation period. This decision which was finalised on 6th October 1998 was not appealed, though the background facts continue to be contested by Mr Murali to this day.
6. Instead, on 22nd December 1998, two-and-a-half months after the final dismissal of the first application, Mr Murali presented a fresh originating application complaining of race discrimination, breach of contract and victimisation. The bulk of the history he relied on, which was not contentious, was the same as in the first originating application, but to it he added further letters he had written up to the late part of October 1998 and to which he had not received a definitive reply until after the Employment Tribunal's final decision. The reply, which had been passed through solicitors because of the then active proceedings dated 30th November 1998, re-stated the respondent's position - right or wrong - that there was nothing to review. The Employment Tribunal, now chaired by Mrs Prevezer on a preliminary application, dismissed this further originating application on the ground it was res judicata and also awarded £300 costs against the applicant because they considered it unreasonable to have brought this further claim. The Employment Tribunal presided over by Judge Peter Clark QC, on an ex parte preliminary hearing, dismissed Mr Murali's appeal. Although Mr Murali has today appeared in person, his case was up to that point conducted by Mr William Panton, whose written arguments we have. I can readily accept Mr Panton's submission, at least prima facie, that there are arguable errors in the Employment Tribunal's reasoning.
7. The principle that a party must bring his full case forward at the first opportunity is there to prevent the same facts being dressed up into successive causes of action. I accept that is not the point here. The point, and it is an important one in discrimination cases, is that a history of adverse treatment which at one point in time is insufficient to found a case of racial, sexual or disability discrimination and therefore fails, may later be added to by an event which makes the inference stronger or possibly even irresistible. If a second claim is brought it is conceptually mistaken to regard the earlier events as res judicata. They are not the "res" at all; they are the evidence by which it has been sought to establish it, and the "res" is now the new one.
8. Mr Murali has drawn our attention today to a passage in a recent decision of the House of Lords in Johnson v Gore Wood & Co which, more elegantly and authoritatively, says the same thing. It seems to me that this was how Mr Panton was seeking to put Mr Murali's case. It may well be that, as he asserts, the Employment Tribunal misapprehended what he was conceding when he agreed that the matters set out in paragraphs 1 to 20 of the second originating application had already been canvassed in the first one. Such a concession, contrary to what seems to have been supposed below, is not necessarily fatal. But the question does not end there. One has to go on, as I do, to consider whether the additional facts relied on, accepting that the earlier facts are not foreclosed and can be aggregated with them, will in total bear the argument which it is sought to erect upon them.
9. In my judgment, having read the papers with great care and listened with care and admiration to Mr Murali this morning, they will not do so. As Mr Murali's own letters made clear, what he was pressing for from 1997 was a review of the refusal to re-admit him to Type I rotational training. The fact that by the time he was reiterating the request in mid-1998 it related to the academic year 1998-1999 does not make it a new request; nor therefore does it make the refusal a fresh refusal. The Employment Appeal Tribunal, in paragraph 8 of its decision, so concluded. They said:

"It seems pellucidly clear to us from the way the second complaint was drafted that what happened was that the appellant continued to make requests for a review of the original decision not to extend his training. Going back to 2 September 1997 that correspondence finally terminated with a letter from the respondents dated 30 November 1998. We have no doubt that the Prevezer Employment Tribunal was entitled to conclude that the appellant was simply going over old ground raising matters which could or should have been raised before the Don Employment Tribunal sitting in 1998."

10. Even re-orientating it to the legal perspective which I have indicated, I can see no escape from this conclusion. To characterise the complaint because of the intervening proceedings as victimisation rather than race discrimination is to fall foul of the principle of finality unless something new and distinct pointing to victimisation has emerged in the course of those intervening proceedings. But to submit, as Mr Murali seeks to do, that delaying the response until the proceedings were over and cancelling a meeting were themselves acts of victimisation is not sustainable. What had to be done was simple: legal advice had to be taken and had to be followed by the intended respondents. Nor can it found a fresh case of race discrimination that other overseas trainees were rotated for an additional year in 1998 to 1999. That is a factor capable of pointing in the opposite direction.
11. The omission from the second Employment Tribunal's reasons of the case on the applicable regulations which had been fully developed before them does not represent an error of law even though Mr Murali laid very great stress on the omission today. It reflects the absence of some new event extending the otherwise defunct claim. This was no longer a live issue.
12. This being so, there is no ground sufficient to justify the grant of permission to appeal on the substantive question of viability of these proceedings. There is in these circumstances, and Mr Murali accepts this, no separate basis for giving permission to appeal against the award of £300 costs by itself. It seems to me that the Employment Tribunal's decision in this regard had a sufficient basis to make it a permissible exercise of discretion.
13. To give permission to appeal on the substantive or the costs issue in these circumstances, as my Lord has explained to Mr Murali, would set him off on a road on which he would face a bill of costs in thousands and not many hundreds of pounds. As a result, like Sir Philip Otton who refused permission to appeal on the papers, and partly in the applicant's best interests, I would refuse this application.
14. For my part, I understand the genuineness of his grievance. He remains working and employed as a surgeon in the National Health Service. It appears to him, and may to others, that he is being employed at a level which - quite irrespective of pay, which he says does not make a great deal of difference - fails to give proper recognition to his experience and accord him the status which is his due. It may be so, but it is not a problem that can be resolved by the proposed proceedings.
15. I would refuse permission to appeal.
16. LORD JUSTICE MUMMERY: I agree.
Order: Application refused