England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice The Strand London Tuesday 20 November 2001

Tuesday 20 November 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application has been submitted by Mr A A Lawal. He wishes to have permission to appeal against the decision of the Employment Appeal Tribunal on 10 September 2001. The Employment Appeal Tribunal dismissed Mr Lawal's appeal against the orders of the Employment Tribunal which had required him to pay £150 deposit to be allowed to continue his claim against the respondents, Tricia Foster and the Chesterfield Law Centre.
2. On 15 February 2000, the Employment Tribunal had sent to the parties extended reasons for their decision requiring him to pay the deposit. He failed to pay the deposit. In consequence an order was made on 20 March 2001 striking out his originating application. The reasons stated in the order are these:

"An order was made against the applicant on 1 February 2001 at a pre-hearing review requiring the applicant to pay a deposit of £150 as a condition of being permitted to continue to take part in the proceedings. The tribunal has been informed by the Employment Tribunal Central Office that the applicant has not remitted the amount specified in that order within 21 days of the date when the document recording the making of the order was sent to the parties."

3. On appeal to the Employment Appeal Tribunal Mr Recorder Langstaff QC, in giving the judgment of the Tribunal at a preliminary hearing, reviewed the facts and the submissions that had been made by Mr Lawal in person and said that there was no error of law in the decision of the Employment Tribunal and therefore the matter could not proceed to a full hearing in the Appeal Tribunal.
4. Mr Lawal has not appeared this morning to make his application. A letter was sent to him by the Civil Appeals Office on 16 October 2001, informing him that his application would be heard in open court today at or after 10am, that it would be without notice to any other party, and that he would receive no further notice of the hearing date.
5. A check has been made with the Civil Appeals Office this morning in order to see whether Mr Lawal has been in touch about today's hearing. The Civil Appeals Office have heard nothing from him. In those circumstances, the time now being 10.11am, I have decided to proceed to deal with this application on the papers in Mr Lawal's absence.
6. The background to Mr Lawal's proceedings is that he made an application to the Chesterfield Law Centre for appointment to the position of an Advice Worker. This was in response to an advertisement placed by the Law Centre. Tricia Foster, who is the first respondent, is an employee of the Law Centre. The Law Centre itself is the second respondent.
7. Interviews were due to take place on Thursday 22 September 2000. Mr Lawal was not offered an interview. It was in those circumstances that he presented to the Employment Tribunal on 22 September 2000 an application on the IT1 form complaining of race discrimination and victimisation in relation to arrangements for recruitment. The origins of the claim for victimisation appear to be that the Law Centre had on an earlier occasion assisted Mr Lawal in other proceedings against a previous employer.
8. A pre-hearing review of the application took place on 1 February 2001. It was at that hearing that the order was made for the payment of £150 deposit. In his extended reasons sent to the parties on 15 February 2001 the Chairman, who had heard the case alone, identified the issues and summarised Mr Lawal's submissions, including the point which he had raised under Article 6 of the European Convention on Human Rights. The Chairman's conclusion is stated in these terms in paragraph 6:

"Taking all these matters into account it is my considered view that the applicant's claim has no reasonable prospect of success and it is my decision that a deposit of £150 should be paid by the applicant as a condition of him proceeding further. I appreciate that under Rule 7(5) I am obliged to satisfy myself that the applicant has the ability to pay the deposit that I order him to pay and from the evidence that I have heard concerning the applicant's income being in the region of £13,000 per annum I am satisfied that he is financially able to meet the deposit. As the applicant will realise there are of course costs implications over and above the payment of the deposit in the sense that if he pays the deposit, which of course is his right, and proceeds to a final hearing but is unsuccessful there, then there may well be an application for costs and the tribunal which hears that case will no doubt be referred to the order which has been made by this tribunal."

9. That decision was made by the Chairman in the exercise of his discretion. Neither the Appeal Tribunal nor this court will interfere with the exercise of a discretion unless it is established that it was made contrary to legal principle, or failed to take relevant matters into account, or is otherwise a decision which no tribunal properly directing itself could have reached.
10. On the appeal, the Appeal Tribunal considered in some detail the submissions which Mr Lawal made about Article 6 of the Convention. Having dealt with that point, the Tribunal said this at paragraph 7:

"Subject only then to the Article 6 point, we have to ask whether the Chairman was entitled to exercise the discretion in the way that he did. The exercise of his discretion was based upon his view that the case had no reasonable prospect of success. For the reasons we have given earlier in this judgment, we think that it was within the Chairman's scope of discretion to take such a view of the case. We consider therefore that it was open to him, if he chose to do so, to make an order pursuant to Rule 7(4). We cannot see that in doing so he exercised his discretion on any wrong basis. It follows that, subject only to the Article 6 point, that this appeal would have to be dismissed."

11. The Appeal Tribunal then dealt with the Article 6 point. They expressed the view that it was unarguable. At paragraph 8 of the judgment they said:

"We do not consider that it could arguably be said to be a breach of Article 6 that one party to litigation be required to make a small payment, which is within his means to pay, as a condition of continuing in the litigation, where it reasonably and properly appears to the Court that those proceedings may be, and probably are, without foundation."

12. In his grounds of appeal, Mr Lawal sets out a summary, which is expanded in his skeleton argument. His points may be summarised as follows. First, he says there was no decision, it was merely a direction; secondly, that the Appeal Tribunal's order did not show the date of the Employment Tribunal's decision; thirdly, that the Appeal Tribunal was unable to show any evidence of the decision filed by the Employment Tribunal; and fourthly, the Employment Tribunal was guilty of conspiracy and equitable fraud by deliberately omitting to make an entry on the register.
13. I have considered those arguments, as well as the more substantial arguments which Mr Lawal advanced to the Employment Tribunal and the Employment Appeal Tribunal. In my judgment, this proposed appeal has no real prospect of succeeding. It is an appeal against the exercise of a discretion. I have already referred to the limited circumstances in which this court will interfere with the exercise of the discretion. On the papers that I have seen I am satisfied that the Employment Tribunal Chairman was entitled to come to the conclusion that the claim which Mr Lawal wished to make against the Chesterfield Law Centre and Tricia Foster was one which had no reasonable prospect of success and that in those circumstances it was appropriate to make an order for the payment of the deposit. Having failed to pay that deposit, Mr Lawal can have no complaint if his proceedings are struck out, as they were on 20 March.
14. I agree with the reasons given both by the Chairman of the Employment Tribunal and by the Appeal Tribunal. The application for permission to appeal is refused.
______________________________________