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 EAT

		Royal Courts of Justice Strand London WC2A 2LL Thursday 8 November 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal By Mr Chaudhary, who is a Fellow of the Royal College of Surgeons. He was, for a number of years, a Registrar in Urology at the North Manchester General Hospital. After 1995 he had a long term locum Registrar's position at Portsmouth Hospital.
2. This case arises out of the introduction of a new Specialist Registrar grade. It was introduced in circumstances, and applied to Mr Chaudhary, in such a way as to lead him to make a complaint to the Employment Tribunal on 2 December 1997 that there had been racial discrimination affecting his access to what is described as NTN (National Training Number).
3. The complaint failed in the Employment Tribunal on a time limit point, so there was no investigation of the merits of the allegation of race discrimination. The Employment Tribunal gave extended reasons on 25 June 1999 for holding that Mr Chaudhary's application was out of time and that it was not just or equitable to extend the time. In reaching that view, the tribunal reviewed the facts and said that it was presented seven months out of time, and that there was no act of discrimination within the three months preceding 2 December 1997.
4. The question therefore arose as to whether the tribunal should exercise its discretion under section 68(6) of the Race Relations Act 1976 to validate the application. They refused to do that for reasons set out in detail in the paragraphs 16 to 20 of the Extended Reasons. They concluded that, on balance, it would not be just and equitable to extend the power.
5. Mr Chaudhary seeks permission to appeal against that. He acts in person, although he was previously represented by solicitors and counsel in the Employment Tribunal and in the Employment Appeal Tribunal. In support of his application, he has submitted two additional documents raising points which are not in his grounds of appeal. The first point in the document headed "Appellant's Supplemental Arguments", dated 26 October 2001, states that he had discovered, after the decision of the tribunal, that a medical practitioner who held a registrar's post in the north-west region where he was serving did not have the approval of the Specialist Advisory Committee in Urology but, nevertheless, was given automatic entry to the new Specialist Registrar grade. He says that that individual has a different ethnic origin from himself and is a direct comparator relevant to his claim for discrimination. He points out that the respondents had declined to answer the race relations questionnaire that he had served and, had they answered it, the information which he acquired late in the day should have been before the Employment Tribunal. He says that this point goes the strength of his claim, which is a factor relevant to the exercise of the discretion to extend time. He says in paragraph 5:

"I believe that if the Tribunal had had this information, it would have concluded that my claim was indeed a strong one and as such, would have come to the conclusion that it would be just and equitable to extend time."

6. That is a new point based on new evidence which was not available to the tribunal and may well lead to an application by Mr Chaudhary to have permission to adduce fresh evidence. That is a point on which I would like the benefit of hearing the submissions of the respondents before deciding whether or not this was an appropriate case to grant permission.
7. Mr Chaudhary produced another document, "Additional Arguments Under Section 68(6)", in which he develops an argument, not on the basis of new evidence but on the basis of a more recent authority of Barlow v London Borough of Southwark, decided in the Employment Appeal Tribunal on 13 September 2001. On the basis of some remarks in that decision, he develops the argument as to the issue of prejudice each party would suffer as a result of the application being out of time and of time being extended.
8. It emerged at a late stage during the oral hearing that Mr Chaudhary was referring to a detailed skeleton argument. However, it was not included in the bundle of papers provided to me by the Civil Appeals Office. I have been working on the grounds of appeal as set out in section 7 of the appellant's notice on page 56 of the bundle as summarising Mr Chaudhary's case. I have also been working on the basis of the grounds of appeal which had been settled for his appeal to the Employment Tribunal contained in the appeal bundle at page 63 to 70.
9. It now appears that Mr Chaudhary had prepared, and dated in August 2001, a 13-page skeleton argument which he says he submitted with his papers. For reasons I am unable to explain, it is not with my papers. He says that the skeleton argument formed an appendix 3 to his Notice. I only have an appendix 1, page 62, and then the documents continue on page 63 with the Notice of Appeal to the Employment Appeal Tribunal.
10. I do not know who is responsible for this omission, but it would not be right for me to make a decision one way or the other on this case without having a chance to read the more detailed skeleton argument of which Mr Chaudhary has shown me his copy. It would appear to be a substantial document. An adjournment is needed if only to give me time to consider his submissions.
11. I am making these comments at 4.25 pm. It is not a satisfactory stage of the hearing to start reading an important document for the first time. I shall asked Mr Chaudhary to supply the court with another copy of his skeleton argument. I would direct that this application for permission be adjourned to a hearing on notice to the respondents. The respondents are to be served with the application and the skeleton argument. They are also to be served with the supplementary and additional arguments. A copy of this judgment should also be supplied to the respondents. I will then hear arguments from both sides and, if necessary, any additional material that is relevant to them before making a decision.
12. I should also say that I have pointed out to Mr Chaudhary the possible down-side to him in following this procedure. If I had given him permission today, the case would proceed to a full appeal. If he lost the appeal, he would be liable to be at the receiving end of an application for costs. So far in this litigation, although he has been unsuccessful in the Employment Tribunal and the Employment Appeal Tribunal, no orders for costs have been made against him. Different rules as to costs apply in this court, the general rule being that the costs follow the event. I have also pointed out to Mr Chaudhary that the same costs consequence could follow if he is unsuccessful at the adjourned hearing of his application for permission.
13. If, as a result of my direction, the respondents attend and submit arguments and they persuade me that this is not a proper case for permission, then they would be entitled to make an application to recover from Mr Chaudhary the costs which they have been forced to expend. He has time to think about this. At the moment, he tells me that he is willing to run the risk as to costs. I make the point because many litigants who come to this court through the tribunal system, where it is the general rule that costs are not ordered, receive an unpleasant shock when they fail and find that the opposing side, which has succeeded, seek costs running into thousands of pounds.
14. Mr Chaudhary proceeds with the warning which I have given as to the possibility of an unsuccessful contested application for permission or, if permission is granted, an unsuccessful appeal. It will be refixed for the respondents to attend the hearing, but it may not be this side of Christmas. That depends on availability of the court.
Order: Application to be adjourned to be heard on notice. New skeleton argument and additional and supplemental material new bundle to be served on the court and on the respondents. Copy of judgment to be supplied to the respondents. (Order does not form part of approved judgment)