England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Cardiff Civil Justice Centre Thursday, 11th July 2002

Thursday, 11th July 2002

1. LORD JUSTICE CLARKE: There are before the Court today two applications for permission to appeal. The first is an application for permission to appeal against an order of the Employment Appeal Tribunal, dated 8th October 2001, made by Wall J, Mr PAL Parker and Mr R Sanderson, in which the Employment Appeal Tribunal ("the EAT") dismissed the applicant's appeal from an order of an Employment Tribunal, dated 15th March 2001, dismissing his application for unfair constructive dismissal by his former employers, who are now the Carmarthenshire County Council. This application is out of time.
2. He also seeks permission to appeal against an order of the EAT, dated 22nd January 2002, made by the same members of the EAT, dated 22nd January 2002, refusing to order a review of the order of 8th October 2001 on the ground that it had no reasonable prospect of success. This application, too, is out of time, but not by much.
3. The applicant, Mr Williams, has appeared in person today, as he did before the EAT on 8th October. In giving judgment on that day, Wall J, said that Mr Williams had conducted that hearing with good humour, honesty and courtesy. He has done precisely the same today and I would like to thank him for that. I would also like to add that I am very pleased to have been able to hear this application in Cardiff and thus to avoid Mr Williams having to travel all the way to London.
4. This case has a very long history, which I can take substantially from the judgment of Wall J. The applicant is now 72, or perhaps 73. Between September 1974 and August 1976, he was employed by the then Dyfed County Council to teach history through the medium of the Welsh language at a school in Dyfed. The headmaster of the school, it appears, became dissatisfied with the applicant's performance as a teacher. Mr Williams says that there was no justification for that whatever.
5. On 13th October 1975, there was a meeting of the Governors, which it appears passed a resolution requiring Mr Williams to perform his duties in accordance with the headmaster's instructions. Unfortunately, from Mr Williams' point of view, on 2nd March 1976, there was a meeting of the governing body of the school, attended by the applicant and his union representative, which confirmed the Governors' recommendation to the Education Committee that he should be dismissed. He was, however, offered a further hearing before a subcommittee, appointed by the Education Committee.
6. Mr Williams' case is that the headmaster gave information to the Governors and the meeting which was untrue and unreliable and Mr Williams would like to have an opportunity to cross-examine the headmaster in order to put a number of questions to him. In particular, he has told me this morning, he wants the headmaster to say whether he regarded the adverse reports against him as 100 per cent accurate or 100 per cent objective. Mr Williams says that they cannot have been either wholly accurate or indeed wholly objective.
7. In short, Mr Williams wishes to prove, as it were, his innocence. He complains, understandably perhaps, that he has been accused, as he says unfairly, of gross incompetence. All this, however, took place a long time ago. The respondent's case was that the applicant resigned voluntarily on 29th March 1976, with effect from the end of the summer term of that year. Mr Williams accepts, as I understand it, that he did resign, but he in effect says that he was forced to resign and was therefore, as it is said, constructively dismissed.
8. Mr Williams then applied to what was then called an "industrial tribunal" and on 7th October 1976, that industrial tribunal dismissed the application on the basis that it had been withdrawn. Mr Williams says that he withdrew it on the advice of the General Secretary of his professional association. Wall J said that that was a decision which he has now had cause bitterly to regret. That regret continues to this day and Mr Williams would like an opportunity to cross-examine the General Secretary of his professional association and I think also its legal adviser.
9. In March 1978, over 18 months after he left the school in the summer of 1976, Mr Williams issued a fresh application which came before the industrial tribunal on 11th September 1978. Being a creature of statute, the Tribunal could only consider the application if it had jurisdiction to do so. That depended on whether or not it had been reasonably practicable for the applicant to present his application within or before the end of the period of three months beginning with the effective date of termination.
10. The Tribunal considered that question with some care. It considered a number of matters, including the withdrawal by the applicant of his previous application in October 1976 and attempts he made thereafter to have that decision reviewed and to appeal the decision to refuse a review. Wall J, in the course of his judgment on 8th October 2001, quoted this passage from the decision of the Tribunal in September 1978:

"Mr Williams also sent letters to other persons whom he thought might have authority or influence but nothing materialised until, as already mentioned, in March this year there was received from his solicitors the originating application which is now before us. This outlines the previous procedural history and concludes with a prayer for justice. So far as it embodies a request to reopen the earlier case, we are not prepared to entertain it and refer to the two review decisions in that case ... It has accordingly been listed for a preliminary hearing on two points, but in this decision we need deal with only one of them. The two points were first whether we could be satisfied that it was not reasonably practicable for Mr Williams to present his application within the statutory period and further in that case whether he presented this application within a reasonable time thereafter; and secondly, whether Mr Williams is debarred from taking proceedings all together by the existence on the register of a decision dismissing his application and which there is apparently no procedural means to revoke".

11. The Tribunal treated the second point as entirely technical, but considered the first question, namely:

"Whether one could reasonably expect a man in Mr Williams' position to have brought this application or an application like it within the period ending on 30th November 1976 or to put it roughly by the end of that year".

12. The Tribunal considered the facts in some detail and came to the conclusion in 1978 that the application had not been brought within a reasonable time after it became practicable to do so and that as a consequence the Tribunal could not entertain it.
13. Thereafter, the applicant took no steps to challenge that decision until he issued an application on form ET1 on 24th November 2000, which was of course over 22 years after the decision of the industrial tribunal. The grounds on which the application is made were substantially the same as those relied upon so long before. Thus, the application again alleges unfair constructive dismissal, but unfortunately for Mr Williams, by an order dated 15th March 2001, the Employment Tribunal dismissed his application for these reasons, quoted by Wall J, as follows. The Tribunal referred to the decision of 18th September 1978 and to the application of 24th November 2000, in which the applicant was attempting to raise the matter which was the subject of the decision of September 1978. The Tribunal continued:

"By letters dated 28th November 2000, 22nd December 2000 and 25th January 2001, sent to the applicant, it was explained to him that the case had been decided and that it was not possible to resurrect it. Every document and letter sent by the applicant to the Tribunal was read. In the letter from the Tribunal dated 25th January 2001, the applicant was warned, conditional upon any argument that he wished to put forward, that the intention of the Chairman was to dismiss the application. In considering the background and facts of the application, the Tribunal in pursuit of its powers under regulation 13(2)(e) of the Industrial Tribunal Constitutions of Procedure Regulations 1993 dismisses the application".

14. Wall J observed that the applicant had written a number of letters to the EAT, many of which invoked the same theme. That theme includes the following: that there was not enough consideration given to his appeal; that the delay of presenting his appeal was not his fault; and that the Chairman of the Tribunal had misinterpreted his reasons for the appeal.
15. In a letter dated 23rd March 2001, again quoted by Wall J, Mr Williams said this:

"I have never stated that I sought 'Compensation', but I do want to restore my professional reputation: my good name as a Schoolmaster -- especially as a teacher of Welsh, after false evidence was presented to the School Governors, without any opportunity for me to rebut the allegations of incompetence made against me. I was not surprised, therefore, that the School Governors recommended my dismissal.

I would like to question three witnesses to corroborate my own evidence and I will be willing to be cross-examined in turn. My professional career has been destroyed and I have never been in full time employment, despite many applications for employment, not only in the teaching profession, since I was forced to resign my last appointment".

16. I should say that since the decisions of the EAT in October 2001 and January 2002, Mr Williams has written very similar letters to this Court, and indeed has sought to persuade the Court of Appeal to allow him to call witnesses before it. In short, the applicant has a strong desire to reopen events surrounding his resignation or dismissal from his employment in 1976. He seeks a full hearing and the opportunity to cross-examine relevant witnesses, including in particular the headmaster and the secretary and legal adviser to his professional association.
17. The EAT dismissed the applicant's appeal. Wall J expressed his reasons in this way:

"As we explained to Mr Williams, these are events which are now coming up to, and in some cases exceeding, 25 years old. It is simply not possible to reopen them. Even if it were within our power, we would think it undesirable to do so, but as we explained to Mr Williams, it is simply not within our power in any event. Our power is limited to deciding whether or not the Chairman of the Tribunal on 15th March erred or made a mistake in law when he refused to entertain Mr Williams' application. We can see no error of law. There is a well known Latin phrase, which translates into English as: 'it is in the interests of justice that there should be an end to litigation'.

We have considerable sympathy for Mr Williams in the objectives which he seeks. I am very sorry that he labours under a sense of injustice that his professional reputation has been besmirched and there is no means to remedy that. I regret very much that he feels his case has never been heard, but he must understand that we simply cannot reopen questions that are 25 years old. The appellant had his opportunity for the matter to be heard in 1976 when the application was withdrawn in circumstances which he has told us about. There was plainly no error of law then or in 1978 when the Tribunal refused to reopen the matter. If that was the case then, how much more must it be in the year 2001. As we tried to make clear to Mr Williams, as sympathetically as we could, the Employment Appeal Tribunal is a tribunal of law, not of fact, and we simply cannot help him. In our judgment, the Tribunal had no choice but to dismiss this application. The appeal stands no prospect of success. In our judgment, it would be quite wrong to allow it to go forward. It must therefore be dismissed at this stage".

18. The order of the EAT, made on 8th October 2001, directed that any application for permission to appeal to this Court be made to the Court of Appeal within 14 days of the date that the decision was sent to the parties. The applicant did not, however, make such an application, but sought a review of that decision by the EAT. That application was refused on 22nd January 2002, with a very similar direction relating to permission to appeal. In fact, this application was made on 3rd April 2002.
19. The applicant has communicated with the Court several times since then. In those letters, he has repeated his main points and sought to set out the attempts he has made over the years to obtain assistance. He expressed concern that he was not able to explain the position sufficiently to the EAT in October. He has explained that over those many years, he has sought assistance from many sources. He says that the delay in applying to the Court over those more than 20 years was not his fault. He consulted lawyers, including two barristers, who in effect, he says, let him down. He has also written to many other people for assistance, including Members of Parliament, the Lord Chancellor and I think also at least one Prime Minister -- but all to no avail.
20. In short, he says he was never given proper advice and asks again for an opportunity to cross-examine the witnesses to whom I have referred.
21. It has, however, been explained to him in the correspondence that this Court only has jurisdiction to entertain an appeal from the EAT on a question of law. It could not possibly permit the applicant to call witnesses, let alone solely for the purpose of cross-examining them, even though I appreciate that Mr Williams himself would be willing to be cross-examined. Whatever the reasons for the 22 years' delay, it certainly was not the fault of the respondent Council, or indeed the headmaster, whom he would like to have cross-examined.
22. As Wall J said, there must be an end to litigation. It is simply too late, whatever the cause of the 20 year delay and more, for this Court to entertain Mr Williams' appeal now. The EAT was plainly correct: there would be no prospect whatever of this Court allowing an appeal, however sympathetic it might be to Mr Williams. There is no possible basis upon which it could say that the EAT had made any error of law, nor indeed that the Employment Tribunal had made any error of law.
23. In these circumstances, while I too have sympathy for Mr Williams, I regret that I must refuse his application and I can only hope that he will now recognise that enough is really enough and that he will be able in the future to live his life without harking back to those events so long ago. I know that will be difficult, but I really would urge him to do so. I am very much obliged to you, Mr Williams, for coming this morning, but I am afraid that now the Court must be adjourned.
Appeal Outcome: Dismissed