England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Wednesday, 17th July 2002

1. LORD JUSTICE WALLER: This is an application by the claimant, Mr Levy, for permission to appeal the decision of His Honour Judge Collins, sitting at the Central London County Court, dated 5th March 2002. Mr Levy brought a claim against the defendant for damages under Section 20 of the Race Relations Act 1976. That section must be read in the context of Section 1 of that Act, Section 1 providing that -

"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; ..... "

2. Section 20 (1) provides -

"It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services -

(a) by refusing or deliberately omitting to provide him with any of them; or

(b) by refusing or deliberately omitting to provide him with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in the first-mentioned person's case in relation to other members of the public ..... "

3. Mr Levy's claim was set out in his particulars of claim. What he alleged was that -

"I am a regular member and a regular visitor to Stanley Casino in Luton. On the 10th day of December 1999 while at the casino the deputy manager Tony O'Neil racially insulted and abused me by calling me `You bloody Jew I am going to bar you from all our casinos in England'. He also pushed me and made threats in the presence of other members and staff. As a result I have been deeply hurt and deeply insulted.

I requested a letter of apology but the defendant refused to provide me with such a letter."

4. Judge Collins doubted whether what was alleged amounted to an act of discrimination under the Race Relations Act, but, despite that doubt, went on to decide the case not on - as he described it - a legal point. He went on to hear evidence from both sides.
5. In that context it is right to say that Mr Levy had been ordered by District Judge Gilchrist on 18th June to exchange the statements of witnesses of fact. Of course that order included the statements of the claimant and the statements of the defendant. Mr Levy did not comply with that direction. In the result on 22nd November 2001 District Judge Taylor made an order that the claimant should be barred from producing any oral evidence of fact at the trial because he had failed to serve any witness statement. It seems that Mr Levy was suggesting that he had appealed against that decision although no notice of appeal could be discovered. There was an interchange between Mr Levy and the judge. I have a transcript of the full proceedings on 5th March. The upshot of that interchange was that Judge Collins was prepared to consider whether Mr Levy should be allowed, despite those orders, to call evidence. Mr Levy was saying in relation to witnesses other than himself that he did not have other witnesses. He had not even at that stage produced statements from other witnesses and had not produced statements from himself. In relation to other witnesses he was saying that they had been deterred from giving evidence by the defendant and, thus, he had not other witnesses he could call.
6. The judge in those circumstances allowed Mr Levy to give evidence in accordance with his particulars of claim and letters he had sent, that being an indulgence to Mr Levy having regard to the fact he had failed to comply with previous orders and, even at that stage, had done nothing to produce statements either of himself or any other witnesses.
7. Having heard evidence from both sides, the judge's judgment was that the abuse alleged by Mr Levy had not actually taken place. The key points so far as the judge was concerned in reaching that decision were, first, that in the very first letter of complaint that Mr Levy had sent there was no mention of the abuse now asserted. The judge emphasised that it would have been extraordinary if this very unpleasant remark had been made that that would not have been the subject of the very first complaint that Mr Levy made. The other key feature was that by the conclusion of the hearing the judge heard witnesses for the defendant, as well as the evidence of Mr Levy, and, on the basis of that assessment, found that the abuse had not taken place.
8. The test for obtaining permission to appeal is that there should be a reasonable prospect of persuading the Court of Appeal to reverse that decision. Decisions on fact, where the judge has had the advantage of hearing the evidence, are very difficult to attack in the Court of Appeal.
9. In the application for permission to appeal Mr Levy relies on four matters. First, he asserts that the judge right at the start of the trial was immediately upset with counsel for the defendant for not seeking to strike out the claim as "out of time". It is true that the judge right at the outset did raise the question whether the complaint had been made in time. As the judge pointed out, there is only jurisdiction in the court to hear proceedings for damages under the Race Relations Act where they have been started within six months of the incident relied on, subject to one circumstance which can provide an extension. What he did was, again, to exercise some latitude in favour of Mr Levy and continued to hear the case.
10. The second point taken is that the judge did not deal with Mr Levy's appeal from the order of District Judge Taylor disallowing the calling of witnesses. The position of the judge was that there was no notice of appeal, as far as could be seen in relation to that order, but the judge - again, in an indulgence to Mr Levy - allowed Mr Levy to give evidence. He did so although Mr Levy had not complied with the directions to produce statements and, even as at the date of the trial, had not produced either a statement from himself or a statement from any other witnesses. As already indicated, so far as other witnesses were concerned, Mr Levy at trial was saying that he could not call any any way.
11. The third complaint is that the judge was biased. It is alleged that it could be seen from the beginning that the judge had made up his mind by reading the documents before the trial that morning. It is said that his behaviour was intimidating towards Mr Levy throughout the trial; he used bullying tactics and interrupted Mr Levy time and time again in a scornful manner. This is the aspect on which Mr Levy has concentrated in his oral submissions. I have a full transcript of the hearing which is somewhat unusual on applications for permission to appeal, but it helps in order to make an assessment as to whether there is any substance in the criticisms made of the judge. I have already indicated two areas in which the judge granted Mr Levy an indulgence in allowing him to give evidence and in allowing him to continue with the case. There is no doubt at all that Mr Levy was allowed to give his evidence in full and without any interruption from the judge. Some aspects of the criticism made, which relate to the questioning by the judge after Mr Levy had given his evidence uninterrupted, are misguided. What the judge was clearly trying to do was to direct Mr Levy's attention to the requirements under the Act if he was to establish discrimination. The judge was clearly giving Mr Levy an opportunity to do that. Mr Levy was also allowed to cross-examine the witnesses for the defendant. Mr Levy says he was not allowed to go back in time to matters that had taken place in 1985. Although the judge initially stopped him doing so, on an intervention by counsel for the defendant he was actually allowed to do so. Obviously, there had to be some limitation on that since the point in issue was what had happened on this day in December 1999. It seems to me the judge clearly took a firm control over the evidence and the giving of evidence, as he was bound to do, but it is unfair to describe him as adopting bullying tactics or as acting in an intimidating way. As it seems to me, there is no reasonable prospect of persuading a court of appeal otherwise.
12. The final point taken relates to a witness, Mrs Armenian. What the permission to appeal asserts is that -

"Mrs Armenian was in court but the judge did not want her to take the stand to give evidence despite the order of the 18th June 2001, asking for her evidence. This prejudiced my case."

13. That is a misrepresentation of the position. The order of 18th June 2001 required the defendant to say whether or not it intended to call Noia Armenian and/or someone called Mr Gibson at the trial. There was some correspondence between the solicitors for the defendant and Mr Levy in which the solictors were trying to get some agreement as to the form of the evidence that might be given in a statement by Miss Armenian. The solicitors were suggesting that there really was no relevant evidence she could give in relation to the incident on that evening. They could get no agreement on that aspect. They finally made clear by a letter dated 7th February 2002 that they saw no reason whatsoever in producing Miss Armenian as a witness at the trial. They have done precisely what the order directed. It seems that Miss Armenian attended at the trial and at the conclusion of the defendant's case defence counsel indicated that she was not going to call Miss Armenian. Mr Levy said he would like her called. The judge pointed out that it was up to the defendants whether they called her or not. That was the position. If Mr Levy had wanted to call this lady as a witness he could have done so. Of course he should have complied with the directions the judge had given in relation to the exchange and production of statements, but that was a matter for him in the way in which he wanted to conduct the trial.
14. As I see it, there is no basis for criticising the judge in relation to Miss Armenian's evidence.
15. What, as it seems to me, it is right to do, finally, is to stand back from all these points and ask oneself whether, having regard to the fact that this court found as a fact that this complaint was not justified, there is any reasonable prospect of persuading the Court of Appeal to reverse it. The answer to that is no. It would also do Mr Levy no favours to suggest that he should be allowed to continue with an appeal in those circumstances. All that would do would be to expose him to the possibility of paying the costs of the other side if the appeal came on and he lost.
16. In those circumstances this application for permission to appeal must be refused.
Order: Application refused