England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2002] EWCA Civ 1166

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		Neutral Citation Number: [2002] EWCA Civ 1166
		A1/01/1894 & Ors

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

Royal Courts of Justice
Strand
London WC2

Friday, 5th July 2002

B e f o r e :

LORD JUSTICE MUMMERY
____________________

	MR. R. CHAUDHARY
	- v -
	THE SENATE OF THE ROYAL COLLEGE OF SURGEONS
	OF GREAT BRITAIN AND IRELAND AND OTHERS
	and	A1/02/0121
	DR. HUGH PLATT
	-v-
	MR. R. CHAUDHARY
	and	A1/01/2717
	MR. R. CHAUDHARY
	-v-
	SPECIALIST TRAINING AUTHORITY OF THE ROYAL MEDICAL COLLEGE
	and	A1/02/0122
	NHS EXECUTIVE HEADQUARTERS
	-v-
	MR. R. CHAUDHURY

____________________

(Computer Aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0207-421 4040
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Official Shorthand Writers to the Court)

____________________

A1/01/1894
MR. J. HENDY Q.C. and MISS P. CHANDRAN appeared on behalf of Mr Chaudhary.
MISS M. CARSS-FRISK Q.C. and MISS J. COLLIER appeared on behalf of the Second and Seventh Respondents.
MR. P. MEAD appeared on behalf of the First Respondent.
A1/02/0121
MISS G. WHITE (instructed by Messrs Thomas Eggar Church Adams) appeared on behalf of Dr Hugh Platt.
MR. J. HENDY Q.C. and MISS P. CHANDRAN appeared on behalf of Mr. R. Chaudhary.
A1/01/2717
MR. J. HENDY Q.C. and MISS P. CHANDRAN appeared on behalf of Mr Chaudhary.
MR. P. HAVERS Q.C. appeared on behalf of the Specialist Training Authority of the Royal Medical College.
A1/02/0122
MISS M. CARSS-FRISK Q.C. and MISS JANE COLLIER (instructed by the Office of the Solicitor, Department of Health) appeared on behalf of the NHS Executive headquarters.
MR. H. HENDY Q.C. and MISS P. CHANDRAN appeared on behalf of Mr Chaudhary.
____________________

HTML VERSION OF JUDGMENT
____________________

LORD JUSTICE MUMMERY: There are before the court applications for permission to appeal in a number of cases which all involve or are related to claims for race discrimination by Mr. Chaudhary. The first case is numbered 1894 ("the Southampton case"). That involves claims by Mr. Chaudhary of race discrimination in relation to a decision as to his eligibility to enter into the specialist registrar grade. That case raises issues on the provisions in the Race Relations Act 1976 concerning the time limits for bringing claims for race discrimination before an employment tribunal, and as to the discretion of a tribunal to extend time on just and equitable grounds where the application has been made out of time. In those proceedings Mr. Chaudhary has failed in the Employment Tribunal and in the Employment Appeal Tribunal. He wishes to appeal.

There is another case brought by Mr. Chaudhary, also concerning race discrimination. That was brought in the Manchester Tribunal. That case raises questions of abuse of process and estoppel in the context of an unsuccessful application by the respondents to this application to strike out his claim. In that case Mr. Chaudhary has been successful in the Employment Tribunal and in the Employment Appeal Tribunal, and it is the respondents who wish to have permission to appeal. That case is numbered 2717.

Then there are another two cases which have been treated as one, numbered 0121 and 0122. The claim of race discrimination relates to entry by Mr. Chaudhary into the specialist register. A point has arisen in relation to the decision of the specialist training authority as to the interpretation and application of section 54(2) of the 1976 Act. Mr. Chaudhary has so far not been successful in those proceedings, and he wishes to have permission to appeal.

The matter first came before me in relation to one of these appeals on 8th November 2001 when Mr. Chaudhary was appearing in person. I directed, for reasons given in a transcript of my judgment, that the matter should be adjourned for an oral hearing on notice to the respondents. Since then, all these applications have been brought on together. The present position is one of some complexity, there being two applications for permission to appeal by Mr. Chaudhary and two applications for permission to appeal from the various respondents to his applications.

The parties have put in detailed skeleton arguments on most of the points and, having read all the papers in preparation for the combined hearing of these applications, I formed the provisional view that this was not a suitable case in which to follow the usual procedure of deciding whether the applications had a real prospect of success. The applications between them raise some novel points of law in relation to employment tribunals, some of them of the statutory construction of the Race Relations Act 1976, some of them as to the application in the context of the employment tribunals system of the doctrines of issue estoppel and abuse of process. They also raise a more straightforward point about the time limit provisions for bringing complaints of race discrimination in employment before a tribunal.

At the outset of the hearing I indicated to counsel that there were three ways in which I could deal with this matter. The first was to grant permission to appeal in all the cases but without going through the normal procedure of considering the prospects of success on the appeal. It would simply be a question that this was a more appropriate way of dealing with a number of complex cases than consideration of prospects of success.

The second option was that I would adjourn all the applications for permission and related applications, such as applications for permission to adduce fresh evidence, to the full court, and the listing would be that the applications for permission, if successful, would be followed immediately by the substantive hearing of the appeal.

The third course was that I would, within the limited time available today, go through each application, hearing the arguments and making a decision on the prospects of success, which might result in one or more of the applications not being granted.

Following discussions which took place between leading counsel and the junior counsel involved, I was told that everybody was agreed upon the second option, which seems a sensible way of dealing with the cases. What I therefore propose to do is to adjourn all the applications which are before the court -- this will include any applications which the parties may subsequently need to make -- to be listed for hearing by the full court, with the direction that substantive appeals are to follow immediately in all those cases for which permission is granted.

There are a number of other directions which it is convenient to give. Some have been agreed between the parties. Others have been suggested by me and have been agreed in the course of discussion between myself and counsel. The directions to be given are these.

In case number 1894, the Southampton case, Mr. Chaudhary is to serve, by Friday 16th August, a revised notice of appeal and a fresh skeleton argument. The respondents reserve their position on whether the draft amendments to the notice of appeal should be agreed by them or whether they wish to oppose them. They reserve their right to respond to the fresh skeleton argument.

In the appeals number 121 and 122, Mr. Chaudhary is to serve a skeleton argument by Friday, 16th August. The respondents to those appeals are to have liberty to serve a skeleton argument within 35 days dealing with the arguments of Mr. Chaudhary. I make no direction at this stage as to the order in which these appeals are to be heard. It seems to me that that is really a matter for the full court. I would indicate, because it may be of some assistance, that, having read the papers, my provisional view is that it would be sensible to do as Mr. Hendy indicated, to spend the first morning of the appeal hearing a full opening on the factual background to the appeals, and then to deal with them in this order: first, the appeal from Southampton raising the time point under section 68(1), (6) and (7) of the Race Relations Act 1976; secondly, to proceed to deal with the Manchester case raising questions of abuse of process and issue estoppel on the respondents' strike out application, and the discrete case involving the specialist training authority concerning the interpretation and application to the facts of this case of section 54(2) of the 1976 Act. I make it clear that it must be open to counsel to suggest to the court that a different order should be followed or for the court to suggest to counsel that a different order should be followed.

There is a further direction as to the skeleton argument in the STA appeal. Mr. Havers has put in a short skeleton argument. It is none the worse for being short, but he wishes to consider whether to put in a more detailed skeleton argument. I direct that that should be done by Friday, 16th August.

The other directions are these. The parties are to agree upon a bundle of authorities. It will be helpful if they could agree a draft list of authorities by 16th August. It would be helpful if the authorities were all put into one bundle. It may be possible and it may be more convenient, when the parties have discussed it, to have separate agreed bundles of authorities for each of the three agreed appeals. That is treating the STA appeal as one case. It would be helpful for the court to have a separate agreed bundle of photocopies of the legislation, the relevant parts of the Race Relations Act, the relevant parts of the Employment Appeal Tribunal Procedure Rules, which were in force at the time when these tribunals were dealing with the cases, and any relevant delegated legislation, such as the 1995 order, article 13, which arise for consideration in the STA appeals.

I have also asked that fresh bundles be prepared for the hearing. Among the bundles in each of these appeals there are unnecessary duplications of documents. There may even be other unnecessary documents in the bundles. On appeals to this court the crucial documents, as counsel in these cases will know, are the decision of the Employment Tribunal whose errors the appeal court exists to correct on points of law, and the decision of the Employment Appeal Tribunal. It is helpful to have in it the pleadings and any other documents that are referred to in the decisions. I would ask the parties to make sure that there are not confusing duplications in the bundles.

I would accede to the submission of Mr. Hendy that these appeals should come on as soon as it is possible to arrange them. I make no order for expedition. It may be some months, it may not be until next year, before these appeals can be heard. Having heard counsels' estimates, I direct that the matter be listed for hearing over four consecutive days. I would direct that this is a case in which the availability of counsel who are presently instructed in the case should be a factor in the decision on the date for the hearing. Most of the counsel before me today have been in this case before. I think that the case is unusually difficult and complex for a case coming from the Employment Appeal Tribunal, and this court would be assisted by having the benefit of the experience of those who have been in the case to date.

I have also asked the parties to attempt to agree two further documents which I think would be of assistance to the court. First, an agreed chronology so that the court is able to see, from one or two bits of paper, exactly how this case has developed over the years. If the parties are not able to agree on every detail, rather than have separate chronologies showing the disagreement, I would prefer that they provide the court with one chronology which indicates, by square brackets, those matters on which the parties are not agreed as to the details of the entry or its relevance. I would also ask the parties nearer the time to agree an outline of the issues which the court will be asked to decide. This is not meant to have the force of any pleading. It is to provide the court with a map, an indication of the area the court is going to be asked to cover during the course of what will be an unusually long hearing. That cannot be prepared finally until nearer the time, when all the skeleton arguments have been finalized and when all the applications which the parties wish to make have been decided upon.