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)and
THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Thursday 15th March, 2001

1. LORD JUSTICE MAY: There are before the court two applications on behalf of Dr Ponnampalam for permission to appeal in two separate but related matters.
2. The first application is for permission to appeal against a decision of Scott Baker J given on 3rd October 2000 in the Administrative Court. Scott Baker J refused the applicant permission to apply for judicial review of a decision of the National Health Service Vocational Training Appeals Panel, who had dismissed the applicant's appeal against the refusal of the Joint Committee on Postgraduate Training for General Practice to issue a certificate of equivalent experience. Suffice to say for present purposes that in order for a doctor to practice as a General Practitioner there has to be in place one or other of two certificates, one of which is termed a certificate of equivalent experience.
3. The second application for permission to appeal which the applicant makes is against a decision of the Employment Appeal Tribunal on 13th June 2000. The Employment Appeal Tribunal then dismissed his appeal against the refusal of the chairman of an Employment Tribunal to review an earlier decision of an Industrial Tribunal made as long ago as 19th March 1984.
4. Accordingly and regrettably for everybody concerned, not least the applicant, this matter goes back a very long way. The applicant is a qualified surgeon and in the early 1980s he decided to become a General Practitioner. In the latter part of 1982, around the October time, he started working for a Dr Stranders as a trainee General Practitioner. Dr Stranders expressed himself not to be happy with the applicant's performance, and the time came when he dispensed with his training as a General Practitioner. That occurred after the training had been going on for about 10 months. That gave rise to a case in the Industrial Tribunal in which the applicant said that he had been racially discriminated against by Dr Stranders.
5. Dr Stranders gave evidence to the Industrial Tribunal that the applicant was not integrating well with the staff at the practice, that he was unwilling to work hard, that he had cancelled clinics at very short notice and that he was reluctant to take responsibility for his cases. He gave evidence that twice during June 1983 he had discussed matters with the applicant and warned him that he might have to terminate his employment if things did not improve. The applicant was on holiday for the period between 22nd June and 21st July 1983, and Dr Stranders gave evidence to the effect that be failed to arrange a substitute to perform his on call duties in his absence, that he cancelled a surgery on 21st June 1983 and that he failed to arrive for his surgery on 22nd July. Dr Stranders himself returned from his holiday on 25th July, and on that or the following day he dismissed the applicant.
6. On the following day, the 26th July, the applicant was away because he was conducting a case for alleged racial discrimination against the Department of Health and Social Security and for that reason was not at the practice that day. Dr Stranders delivered a letter of dismissal to the applicant's home on that day. As a result of this dismissal, the applicant brought proceedings in the Industrial Tribunal against Dr Stranders in respect of his treatment and his dismissal and, as I say, it was based upon an allegation of racial discrimination.
7. The Industrial Tribunal considered the matter carefully, noted among other things that the dismissal had taken place on the day on which the applicant was conducting his case against the DHSS, but in the result accepted the evidence of Dr Stranders that there was no racial motivation for the dismissal. Accordingly, the case in the Industrial Tribunal in March 1984 failed.
8. Another consequence of this was that Dr Stranders did not provide a certificate of satisfactory completion of training - referred to as VTR1 - for the 10-month period that the applicant was at his practice.
9. Time passed and the applicant continued to be unable to set himself up in General Practice. There came a time when, in 1994 or thereabouts, the applicant was applying to the Joint Committee on Postgraduate Training for General Practice for an appropriate qualification to become a General Practitioner. For that purpose enquiries were made of Dr Stranders, and Dr Stranders wrote a letter which is at the centre of both applications before the court today. It is a letter dated 2nd November 1994. It is addressed to the Honorary Joint Secretary of the Joint Committee on Postgraduate Training for General Practice and it reads as follows:

"Thank you for your letter of 27 September 1994 requesting further information in respect to the refusal by me of issuing a VTR1 certificate to Dr Ponnampalam for his traineeship while under my auspices as his trainer.

As you will be aware, I dismissed Dr Ponnampalam as his performance as a trainee proved unsatisfactory, despite repeated attempts to resolve matters. For example, he regularly did not attend the half-day release course at Luton and Dunstable Hospital, and was reluctant to accept advice or help with regard to his general practitioner training. As a result of these difficulties I was in contact with Dr Michael Price who at that time was Associate Regional Adviser in General Practice, and I corresponded with him expressing my concerns regarding Dr Ponnampalam's traineeship.

Regrettably, I do not have any correspondence relating to this still in my possession, nor do I have any of the assessments made at that time, but as you will appreciate this is over a decade ago. However, as a result of my dismissal of Dr Ponnampalam, he accused me of racial prejudice and the allegation was heard in the industrial tribunal. I enclose a copy of their decision and their reasons for this decision, which is self-explanatory.

I would like to add that at the time of his dismissal I spoke to Dr Michael Price and stated that if he was able to find Dr Ponnampalam another trainer to complete his traineeship, and if that trainer felt I had been incorrect in my assessment, I was prepared to reconsider his period of traineeship under my tutorledge, and grant a VTR1 to cover the period that he was with me. I felt this was a reasonable course of action in case I had misjudged Dr Ponnampalam's performance, and furthermore I did not wish to prevent his entry into general practice, although I was personally unhappy with his performance while at Davenport House. As far as I am aware, however, Dr Ponnampalam made no enquiries of Dr Michael Price, and accordingly his traineeship was never completed under the auspices of another trainer.

From my recollection of events, I did everything possible to try and ensure that Dr Ponnampalam had the facilities available to complete his vocational training in general practice, and that his time with me would count towards his experience. Regrettably, however, he preferred to take me to an industrial tribunal citing racial prejudice as my grounds for his dismissal, but as can be seen this allegation was dismissed.

As far as I am aware, he made no further attempts to complete his training and I am somewhat surprised that he wishes to now apply for a certificate of equivalent experience after such a lengthy delay."

10. I have read that letter in full because Dr Watkins' submission on behalf of Dr Ponnampalam turns really upon the proper interpretation of and consequences to be derived from that letter.
11. The letter was regarded by Dr Ponnampalam and perhaps by those helping him as being inconsistent - I am tempted to say fundamentally inconsistent - with the actions that Dr Stranders took in 1984, and in particular with the evidence that he had given to the 1984 Industrial Tribunal. Accordingly, the applicant applied to the Employment Tribunal (the body that was then in existence in place of Industrial Tribunals, as they had been in 1984) for a review of the original 1984 decision. This was an application by letter of 4th December 1999. The ground for review was expressed in these terms:

"Form VTR1 is a statutory document which could not honestly be signed in respect of a trainee who had been guilty of the conduct described to the Tribunal. [Dr Stranders] therefore either gave false evidence to the Tribunal or he was prepared to make a false statement on form VTR1."

12. It can therefore immediately be seen that the point was being taken that the letter was fundamentally inconsistent with what had been said and done in 1984.
13. That application was considered - surprisingly perhaps after the passage of time - by the person who was the actual chairman of the Industrial Tribunal back in 1984. By a decision of 9th December 1999 she (I think it was) refused the application for review. The principal reason given was that with the passage of time the Industrial Tribunal's files, including the notes of the proceedings and evidence, had been destroyed so that the new evidence could not reliably be weighed against the evidence received at the time of the hearing. Further, it could not, it was said, be in the interests of justice to reopen the case after such a long period of time.
14. The applicant appealed against this decision to the Employment Appeal Tribunal and by a decision of 13th June 2000 the Employment Appeal Tribunal dismissed that appeal. I should interpolate by remembering that it is that decision of which permission to appeal is sought.
15. The reasons given in short were that there could no longer be a fair hearing. The reasons included the following passage:

"It seems to us that the Regional Chairman directed herself to the law and the situation and carefully weighed the practicality of having a fair trial when evidence comes about which may cast light on evidence given at an earlier hearing. We find it difficult to envisage how a subsequent Tribunal can assess any contradiction or inconsistency there may be without having both sets of evidence available so as to weigh the one against the other. It seems to us that the assessment the Regional Chairman made about the difficulty of having effectively a fair hearing was one that she was entitled to come to and displays no error of law.

20. Furthermore, it seems to us that the implication of allowing this application would be that Dr Stranders, something in excess of seventeen years after the event with no record to remind him, would have had to come to a hearing and recreate evidence and explain what was alleged to be an inconsistency. That it seems to us must be, and was treated by the Regional Chairman as, a very good illustration of the principle that there must be finality in litigation. It cannot be in the interest of justice to reopen a case after fifteen years in these particular circumstances. As a general proposition, of course, that is unsustainable. There may be cases in which the interests of justice do demand reopening. But it is quite clear from the context of the decision that it was in the context of this particular case that the Regional Chairman was making that observation.

21. We have also considered the evidence which it was sought to call. With the greatest respect to Mr Watkins this does not it seems to us give rise to the dramatic conflict and inconsistency which could, even on the face of it, reasonably give rise to the grave allegation that Dr Stranders had committed perjury. What Dr Stranders was saying in the later letter was that if he was thought, by another trainer, to have been wrong and if that trainer would have vouched his approval of the Appellant's work, then he would have been prepared to adopt that. We must bear in mind that that letter was written in the context of the Appellant's seeking to gain his professional qualification. Dr Stranders made the point in the letter that he did not wish to prevent the Appellant's entry into General Practice, although he was personally unhappy with his performance. That it seems to us on the face of it, is not inconsistent with the evidence before the Tribunal, it simply is additional to the evidence before the Tribunal. Although, had it been before the Tribunal there may have been an argument that he could not have said that if he had taken such a serious view of the Appellant's misconduct, we could well imagine Dr Stranders simply saying; `well I thought to be fair he was entitled to a second opinion.' There was a point. If this comment could have been raised at the original hearing, it would no doubt give rise to arguments. However, it does not seem to us to contain the seeds of the dramatic conflict and question mark over the integrity of Dr Stranders for which Mr Watkins contends that it demonstrates on its face."

16. The Joint Committee, by letter of 28th August 1998, refused the applicant's application - which was actually a different application from that which he had made in 1994 - for a certificate of equivalent experience. By letter of 26th November 1999 the appeal panel dismissed the applicant's appeal from this refusal. The appeal panel refused to require Dr Stranders to give evidence and be cross-examined, and relied on the findings of the Industrial Tribunal in 1984 in assessing the quality of the applicant's work during his time with Dr Stranders. The applicant applied for judicial review of this decision on the grounds that the requirements of natural justice dictated that the applicant should have been given an opportunity to cross-examine Dr Stranders, and that the appeal panel was wrong to rely on the Industrial Tribunal decision.
17. The applicant was, as I have said, refused permission to apply for judicial review by Scott Baker J on 3rd October 2000, and it is against that decision that the applicant seeks permission to appeal to this court.
18. What, among other things, Scott Baker J said was this. He set out, in the latter part of paragraph 13 of his decision, part of the finding of the appeal body in these terms:

"`The Appeal Body finds against your representations that Dr Stranders' letter of 2nd November to the Joint Committee can be construed as evidence that Dr Stranders felt either in 1983 or in 1994 that he should have granted a VTR1. He stated clearly that he considered your performance as a trainee to have been unsatisfactory. His statement that in specified circumstances he would have been prepared to reconsider the period of traineeship under his tutelage and to grant the VTR1 was conditional upon events which did not take place. Account has been taken of your oral evidence on the question as to whether any discussions took place between you and Dr Stranders prior to your dismissal from his employment concerning your performance. Account has also been taken of your submission that we should prefer your oral evidence in this respect to Dr Stranders' letter of 2nd November 1994 because the Joint Committee had not called him as a witness and he was therefore not available to be cross-examined. Account has also been taken of the findings of the Industrial Tribunal of 9th May 1984 [I think that must be March 1984] and of your representations on the interpretation of those findings.

The Appeal Body has concluded that you have not provided evidence that you satisfactorily completed the 10-month period of GP training.'"

19. Of that Scott Baker J said this:

"14. In my judgment, the reasoning there of the appeal panel cannot be faulted. It is far too late now for the applicant to seek to go behind the decision of an industrial tribunal in 1984 which rejected his allegation of racial discrimination and concluded that he was, in effect, not a credible witness. It is, in my judgment, of the greatest importance that the provisions with which the appeal body and earlier the Joint Committee were concerned should be strictly complied with, and I can see no justification for requiring Dr Stranders to be brought before the committee to be cross-examined about matters that occurred long ago when, as it appears to me, there is absolutely no inconsistency between what he said to the industrial tribunal and what he subsequently wrote in his letter of 2nd November 1994.

15. When this application was before the judge on paper, Potts J observed that the appeal body was entitled to decide as it did. It gave adequate reasons for having done so and, in particular, for not requiring or permitting cross-examination of Dr Stranders. Having listened to oral argument, I entirely agree with that view. This, it seems to me, is a completely misconceived application and permission is refused."

20. The written grounds of the proposed appeals may be shortly summarised as follows. In the case of the appeal panel, that the judge, Scott Baker J, was wrong to find that natural justice did not require Dr Stranders to be cross-examined and that the judge was wrong to find that the appeal panel could rely on the decision of the Industrial Tribunal, since that was concerned with racial discrimination and not with unfair dismissal. The grounds of the proposed appeal in the matter of the Employment Appeal Tribunal are that the decision of the Employment Tribunal was wrong and that the applicant has a reasonable prospect of success in overturning the original 1984 decision.
21. Dr Watkins has spoken in support of those grounds this morning on behalf of the applicant. What he has stressed is that the letter of 2nd November 1994 constituted, as he would put it, formal evidence which the appeal panel took into account, and that that letter should be seen as being seriously inconsistent with factual evidence, not evidence of opinion which Dr Stranders gave in 1984. He suggests that Scott Baker J and the Employment Appeal Tribunal failed to appreciate the distinction between evidence of fact and evidence of opinion or judgment. Dr Stranders could well have changed his mind on questions of opinion; but how, asks Dr Watkins, could two months' experience with another doctor change his views on questions of fact, facts such as the assertion that the applicant had failed to attend a training session and so forth? How could Dr Stranders say that he might have issued a certificate, which was inconsistent with the facts which he had asserted at the 1984 Tribunal hearing? He said that the applicant had cancelled clinics and that this was based on records. This, submits Dr Watkins, is not a matter of belief or opinion and it is, he submits, just inconsistent with the required certificate. The same applies to attendance at a training course and so forth. How could it be that information from another source could have induced him to reach a different conclusion? Accordingly, the two are inconsistent, one or the other must be wrong. There is the potential, submits Dr Watkins, for Dr Stranders having committed perjury (he goes as far as to say) in 1984, and that that is a matter which a reasonable Tribunal should take into account because the discrepancy between the original decision and what was said in the letter of 1994 is so great that the evidence ought to be heard by the Tribunal itself and the matter ought not to have been decided simply by the chairman.
22. As to the Appeal Panel matter, if the applicant had satisfied the 10-month training requirement during that period, he would have had a strong case for a certificate of equivalent experience. The appeal panel proceeded on the basis of the original Industrial Tribunal's decision, but the Industrial Tribunal was only dealing with unfair dismissal and the panel was not bound by the former decision. As in the other matter, Dr Watkins submits that the panel had before it evidence of serious discrepancy deriving from the November letter. The appeal panel, he submits, declined to determine what it had to determine. It was not entitled, he submits, to accept written evidence on a question which obviously raised serious doubts as to Dr Stranders' credibility. It should have required him to appear and be cross-examined. In the round, Dr Watkins submits that in these circumstances justice requires that the applicant should be given permission to appeal each of these matters.
23. It seems to me that the essence of both these matters lies in the fact that Dr Stranders dismissed the applicant in 1983, and when he did so he did not sign the appropriate certificate for the 10-month period that the applicant was at Dr Stranders' practice. The essence of both challenges lies in the contention that the November letter was fundamentally inconsistent with what Dr Stranders did and said in 1983 and 1984.
24. In my judgment neither of these proposed appeals has any prospect of success. On the contrary, and despite Dr Watkins' submissions, they both appear to me to be misconceived. The National Health Service Appeal Panel and Scott Baker J gave very careful consideration to the matters before them. The same applies to the original 1984 Industrial Tribunal, to its chairman in considering the application for review in December 1999 and to the Employment Appeal Tribunal.
25. As I have said, the essence of both matters appears to me to be this. The 1984 Industrial Tribunal gave what seems to me to be detailed and entirely sustainable reasons for rejecting the contention that Dr Stranders had been guilty of racial discrimination. Dr Stranders did not in 1983 or 1984 give the necessary certificate for the 10-month period when the applicant was with him. Contrary to Dr Watkins' submissions, in my view Dr Stranders' letter of November 1994 is not inconsistent with the evidence he gave to the Industrial Tribunal, nor with his failure to issue the certificate. The contention that it is evidence of possible perjury is, I think, extravagant and plainly unsustainable. All that the letter which I have read in full was doing was alluding to the possibility that subsequent satisfactory performance, which did not in the event materialise, might have influenced Dr Stranders to reconsider the judgment that he made in not giving the certificate. The letter does not, in my judgment, impugn either of the substantive decisions which the applicant wants to challenge. What is more - and this is important - the time between now and 1984 is so great that it would, in my judgment, be positively unjust to reopen these questions.
26. For these reasons, both these applications are refused.
ORDER: Applications for permission to appeal refused. (Order not part of approved judgment) ____________________