England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2002] EWCA Civ 1710

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		Neutral Citation Number: [2002] EWCA Civ 1710
		A1/2002/1587

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
Friday, 1 November 2002

B e f o r e :

LORD JUSTICE MUMMERY
____________________

	BRITISH MEDICAL ASSOCIATION	Applicant
	-v-
	CHAUDHARY	Respondent

____________________

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____________________

MR JOHN CAVANAGH QC and MR TERENCE RIGBY (instructed by Legal Department, British Medical Association) appeared on behalf of the Applicant
The Respondent was not represented and did not attend
____________________

HTML VERSION OF JUDGMENT
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LORD JUSTICE MUMMERY: This is an application for permission to appeal. The decision which it is wished to appeal is that of the Employment Appeal Tribunal at a preliminary hearing on 30 April 2002, when the appeal tribunal, in a judgment given by Mr Recorder Langstaff QC on its behalf, decided that the appeal by the British Medical Association could only proceed on some of the grounds of appeal. Its appeal was against the decision of the Employment Tribunal at Manchester, finding that there had been race discrimination on the part of the British Medical Association against Mr Chaudhary. He is the applicant in the Employment Tribunal proceedings. The finding was that, although there had not been direct discrimination, there had been indirect discrimination in respect of a failure to provide him with support and assistance in claims of discrimination, which he wished to make against the Post-Graduate Dean at Portsmouth, the Specialist Training Authority and The Royal College.

It is unnecessary to examine the detailed background of the case at this stage. It will suffice to say that, when the papers were first put before me on the application for permission to appeal, no separate skeleton argument had been prepared in relation to this appeal. Reference was made to the skeleton argument used in the appeal tribunal. I did not regard this as a satisfactory way for the court to have to consider the question of real prospects of success. I adjourned the matter to an oral hearing with directions. Since then a skeleton argument has been prepared for this application for permission dated 15 October 2002.

Mr Cavanagh QC has appeared with Mr Rigby to argue that this is an appropriate case for granting permission. I am satisfied, having read the skeleton argument and the grounds of appeal, that this appeal does have a real prospect of success. The issue before the full court will be whether the Employment Appeal Tribunal were correct in their decision that certain of the grounds of the appeal should be excluded from a full hearing there, because they did not have a real prospect of success. The threshold for the grounds is a high one, as Mr Cavanagh recognises, since the principal ground of challenge to the decision of the Employment Tribunal is that it was perverse, as well as there being failure to give adequate reasons and failure to identify the particular grounds on which Mr Chaudhary's claims - for which he said he did not receive the assistance he had asked for - could be evaluated. I say no more about the merits of the case at this stage.

I have discussed with Mr Cavanagh the logistics of the appeal, since it is a rather complicated situation. While this appeal is pending there can be no substantive appeal in the appeal tribunal, since it will not know on what grounds it can be argued. I am told by Mr Cavanagh that, although a joint request for expedition has been made for the hearing of the appeal in the appeal tribunal, that has been refused and there is a considerable waiting time for the appeal. We would not wish delays in this court to cause delays in the appeal tribunal. It seems that whether the grounds have real prospects of success in the appeal tribunal is a matter that should be dealt with on an expedited hearing. I would of course order the hearing of this appeal be expedited. I would give it an estimate of half-a-day for the hearing.

I have also discussed with Mr Cavanagh other logistical problems about a mass of litigation, stemming from Mr Chaudhary's complaints of discrimination in relation to his claim to be treated as a specialist registrar. There are other pending appeals, which arise out of decisions made in proceedings brought against the Specialist Training Authority, the Secretary of State for Health and The Royal College. Directions have already been given for those appeals to be heard. My current understanding is that they will be heard in next February or March. It is possible that the result of those appeals could affect the result of the appeal in this case pending in the appeal tribunal but, at present advised, I do not see that as a ground for deferring the hearing of this appeal, until the hearing of the other appeals in February or March next year. There is also the question of another appeal in the present litigation against the decision on the remedies hearing.

I should make it clear that the appeal under consideration only concerns liability. Since the decision on liability by the Employment Tribunal on 24 September 2001 there has been a remedies hearing at which an award of £814,877.41 was made against the British Medical Association in favour of Mr Chaudhary. That is under appeal. It will be a matter for the Employment Appeal Tribunal to consider, in the arrangement of its own business, whether it is possible, as I would expect it to be, for the remedy hearing and the liability hearing to be heard at the same time. But there may be reasons, of which I am not aware, for keeping the hearings apart. It may, for example, be more convenient to divorce the two, because, if the appeal against liability is successful, there would be no need to go into the question of whether there was an error of law in the award of compensation. I make it clear that it is for the Employment Appeal Tribunal, and not me, to decide how it organises the hearing of the appeals against the decisions being made to it from the employment tribunal.

The only order that I make is that permission be granted for this appeal, that the hearing of this appeal be expedited and that it be listed for half a day. That is not to prevent the parties, if they reach an agreement or if they do not reach an agreement, from unilaterally making applications to the Civil Appeals Office for consideration for the arrangements for the hearing of this appeal.

Order: Application allowed