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 AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Recorder Underhill QC)

		Royal Courts of Justice Strand London WC2 Friday, 19th July 2002

Friday, 19th July 2002

1. LORD JUSTICE PETER GIBSON: The respondent employer, Yorkshire Rider Ltd, applies to this court for the dismissal of an appeal for which permission to appeal has already been given. The application is made in circumstances in which, it is said, the appeal has been rendered academic by events occurring since permission to appeal was given. The application is made under CPR 52.9, paragraph (1) of which allows the court to (a) strike out the whole or part of an appeal notice, and (b) set aside permission to appeal in whole or in part. The court's power is however subject to paragraph (2):

"The court will only exercise its powers under paragraph (1) where there is a compelling reason for doing so."

2. What is said is that the compelling reason is the purely academic nature of the appeal, if it were to go ahead, as the proceedings in which the appeal is brought have been struck out. The appellant employee, Francis Neckles, appears before me today in person and has addressed me with great courtesy and clarity.
3. The unusual facts are these. On 17th November 1999 Mr Neckles presented an originating application to the Employment Tribunal. He has presented a number of originating applications against the employer, but the particular case with which I am concerned is one which bears reference number 1806977/99. It appears that one part of what came to be in that case had in fact been a complaint which Mr Neckles had sought to introduce by way of amendment to an earlier originating application. That and another complaint were put together under the case number which I have given. The two parts were (1) unlawful direct racial discrimination by the employer in relation to Mr Neckles' grading and rate of pay, and (2) victimisation in that the employer refused to comply with an order for reinstatement following a successful claim made by Mr Neckles for unfair dismissal. On 9th March 2000 the Employment Tribunal heard an abjection by the employer that the complaints were out of time ("the first application"). The Employment Tribunal considered that application (amongst others) and made an order dismissing the complaint of direct racial discrimination but allowed the complaint of victimisation to proceed. An appeal by Mr Neckles was dismissed on 1st February 2001 by the EAT. Permission to appeal to this court, however, was given by Pill LJ on 1st November 2001. That appeal was to be heard on 7th February 2002.
4. However, the hearing was adjourned on a joint application by solicitors for Mr Neckles and by solicitors for the employer. The basis of that application was that by a letter dated 6th March 2001 from the employer's solicitors a further application ("the second application") was made by the employer to strike out on the grounds of Mr Neckles' scandalous conduct of the proceedings on 9th March 2000. The second application succeeded before the Tribunal, and on 18th January of this year the EAT dismissed Mr Neckles' appeal. The solicitors for both sides recognised that if Mr Neckles did not obtain permission to appeal in respect of the second application, the appeal in respect of the first application would have been rendered academic.
5. On 10th April 2002 Pill LJ in open court dismissed the application for permission to appeal in respect of the second application, and there can be no further appeal in that matter. Hence, there is now, it is said, no point in this court hearing the appeal in respect of the first application.
6. The point which is taken by Mr Neckles is this. He considered that at all times the proceedings were in two quite distinct parts, one for direct racial discrimination and one for victimisation. He considered that the application to strike out on the grounds of allegedly scandalous conduct related only to that part of the complaint which related to victimisation and did not relate to the unlawful direct racial discrimination complaint for which permission to appeal was eventually given by Pill LJ. He has said, and I do not doubt he is sincere in this, that at no time did he believe that there was a striking out by the Tribunal of the whole proceedings. He submits that, when the letter of 6th March 2001 and the Tribunal's decisions are properly construed, the Tribunal, when striking out on the ground of his conduct, was only dealing with the victimisation complaint and that therefore that left his direct discrimination complaint extant. Accordingly, he submits, the appeal for which permission has been given should be allowed to go ahead.
7. Undoubtedly the language of the solicitors for the employer in their letter of 6th March 2001 seeking the striking out was not as well drafted as it should have been, but the important point is what the Tribunal in fact did. In its decision, which was promulgated on 25th September 2001, it summarised what it decided in this way:

"That the Applicant's complaint in case No. 1806977/99 is struck out on the grounds that the manner in which those proceedings have been conducted by or on behalf of the Applicant has been scandalous."

8. In the decision of the Tribunal at paragraph 15, the Tribunal, having decided that the conduct of Mr Neckles was a deliberate contempt and amounted to scandalous conduct, said this:

"Since the conduct was scandalous, we know of no reason why we should not exercise our discretion to strike out the proceedings and, indeed, no argument to the contrary was raised by the Applicant [that is Mr Neckles] or by his representative."

9. In the judgment of the EAT on 18th January 2002 what was said in paragraph 25 by his Honour Judge Pugsley giving the judgment of the EAT was this:

"It follows from our decision that the appeal is dismissed on the basis that it was within the discretion of the Tribunal to strike out the Appellant's action because it was scandalous..."

10. Pill LJ cited that passage with evident approval when he agreed with the EAT and refused permission to appeal to this court.
11. The matter does not stop there, because, as I have indicated, Mr Neckles had solicitors and counsel acting for him, and they too appear to have taken the view that the appeal would have been rendered academic unless permission to appeal from the strike out for scandalous conduct was obtained. It was for that reason that there was the joint application to the court for the adjournment of the hearing listed for 7th and 8th February 2002. To my mind the position therefore is quite clear. Indeed I can see no reason why the Tribunal should not have wished to strike out the whole of the originating application, given its finding that the conduct of Mr Neckles had been scandalous.
12. It is unusual to find permission to appeal having been granted being the subject of an application to set aside on grounds such as this. There is no material before me to suggest that when Pill LJ gave permission to appeal in respect of the first application he was aware that proceedings had been taken to strike out the originating application. Had he been aware of that fact, I do not doubt that he would have mentioned the point in his judgment. He does not. I fear that Mr Neckles' counsel may not have drawn his attention to that fact. Whether his counsel was aware of the second application I know not, but that may explain how one arrives at the unusual situation there is today.
13. It seems to me clear that there would be no point in allowing the appeal for which permission has been given to go ahead, given the striking out. That is in my judgment a compelling reason to strike out the appeal notice and to set aside permission to appeal in whole.
14. Mr Neckles has told me that he has other complaints to make about the Tribunal and its impartiality, and suggests that he has rights under Article 6 of the European Convention on Human Rights which have been breached. I am afraid that none of that assists him on the present application.
15. In my judgment the application must be allowed. I will accordingly make the order requested.
Order: Application allowed with costs summarily assessed at £10,000, payable within 28 days.