England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
His Honour Judge Playford QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 December 2002

Lord Justice Waller:

This is the judgment of the court.

1. In June 2001 Nadeem Ahmed commenced a claim in the Oxford County Court against Oxford University and Doctor Fritz Zimmermann alleging discrimination and victimisation on racial grounds. The matter came on for trial on 28^th March 2002. The trial lasted for some 7 days before His Honour Judge Playford QC and two assessors appointed by virtue of section 67(4) of the Race Relations Act 1976 (the 1976 Act). On 22^nd April 2002 in an extensive and detailed judgment Judge Playford dismissed Mr Ahmed's claim. Mr Ahmed appeals against that judgment seeking a reversal of the judge's finding or a remittance of his claim for a rehearing before a differently constituted tribunal.
2. The story involves three students of Dr Zimmermann, Mrs Clark who is white and Mr Ahmed and Mr Pirani, who are not. The judge found that Dr Zimmermann discriminated against Mr Ahmed in favour of Mrs Clark. The three students took an exam in Arabic. Dr Zimmermann failed Mr Ahmed but passed Mrs Clark. The judge found that their performance in the exam did not justify the disparity of result. He held, however, that the motive for this discrimination was not racial, but the fact that Mrs Clark was a keen and diligent student, whom Dr Zimmermann was anxious to help, whereas Mr Ahmed had neither of those qualities and Dr Zimmermann felt that he should be discouraged from proceeding with his studies.
3. The principal reason why Mummery LJ gave permission to appeal was that this appeal raises the question of the role of the assessors appointed by virtue of section 67(4), and the judge's approach to that role. It is the first time that this court has had to consider the role of assessors in this field, and indeed it would seem that this is the first occasion on which any detailed consideration has been given to the role of such assessors.

The grounds of appeal

4. It is convenient to set out the grounds of appeal at the outset:

"The judge erred in law in:

1. Failing to inform the parties of the advice provided to him by the assessors (appointed pursuant to Section 67(4) of the Race Relations Act 1976);

2. Failing to provide the parties with an opportunity to make representations on the assessors' advice;

3. Failing to give adequate reasons for his decision and or otherwise erring in failing to state the advice provided to him by the assessors in his judgment;

4. Failing to act compatibly with Article 6 of Schedule 1 of the Human Rights Act 1998 by,

(i) Failing to provide the parties with an opportunity to make representations on the assessors' advice;

(ii) Failing to state the advice provided to him by the assessors in his judgment.

5. Failing to have regard to evidence on the defendant's policies and practices on eliminating racial discrimination, equality of opportunity and related matters (judgment paragraph 2)

6. Failing to make any findings on the Defendants' policies and practices on eliminating racial discrimination, equality of opportunity and related matters;

7. Failing to conclude that the differences in treatment he found was on racial grounds in circumstances where he rejected the Defendants' defence on the main complaint as "incredible granted fairness and equality" (paragraph 47);

8. Failing to conclude that the difference in treatment he found was on racial grounds and instead concluding that the reason for the treatment was a matter not relied upon by the Defendants in their fully pleaded Defence;

9. Failing to have regard to all the evidence relevant to the drawing of racial grounds including all the evidence of the Defendants' witness, Mr Pirani, as to treatment afforded him by the Second Defendant;

10. Reaching a decision which no reasonable Tribunal properly directing itself could have reached in concluding that the treatment afforded the Claimant (which he found to be less favourable) was not on racial grounds."

5. It is notable that these grounds of appeal make no criticism of the manner in which the judge used his assessors. They assume that he took advice from them of a nature that could be conveyed by him to the parties in the course of the hearing and recorded in his judgment. The complaint that is made in Grounds 1 to 4 is that the judge neither informed the parties during the hearing of the advice that he had received nor recorded this in his judgment. As Mr Robin Allen QC for Mr Ahmed developed these grounds of appeal before us, we became increasingly concerned that they were based upon a false premise as to the manner in which the judge should have used his assessors. We put our concerns to Mr Allen and, on reflection, he endorsed them. Thereafter, his submissions departed from his grounds of appeal in that he argued that the judge had failed to make proper use of his assessors. Mr Bowers QC for the respondents did not object to this change of battle front. He sought to uphold the manner in which the judge appeared to have used his assessors. This was summarised by the judge at the outset of his judgment as follows:

"For this reason, while I record my gratitude to the Assessors, who have sat with me and provided assistance pursuant to s.67(4), the scope for assistance has perforce been limited. Founding on The Aid (1881) P.84, Counsel (to whom I also record my gratitude) are agreed that the Assessors should not be involved in primary findings of fact nor in inferences to be drawn nor in the law to be applied. They may be concerned with race relations practice, for example training, equal opportunities policies or monitoring, the possibility of discrimination emerging in subconscious ways which may lead to inferences being drawn by me and in the use of language or conduct which may lead to subconscious racism. In this case, however, the outcome depends, as Neill L.J. anticipated in King v Great Britain-China Centre (1992) ICR 516 at p. 528, "on what inferences it is proper to draw from the primary facts found by the tribunal". I make it clear, therefore, that I have in mind the views and assistance afforded by the Assessors but the findings of primary facts, the inferences drawn from them and the conclusions that follow are mine."

6. For reasons that we shall explain, we have concluded that this summary of the role of assessors in a race discrimination case is unsound. As we shall show in due course, the judge was led astray by submissions made by Mr Bowers as to the manner in which his assessors should be used. Those submissions were endorsed by Ms Monaghan, junior counsel representing Mr Ahmed. They represent, as we understand it, received wisdom in relation to the use of assessors in race discrimination cases. Before turning to the consequences of these matters on the result in this case, we propose to address the important issue of the manner in which assessors should be used in cases such as this.

The statutory framework

7. It is not in issue that if Dr Zimmermann discriminated against Mr Ahmed as defined by section 1 of the 1976 Act, or victimised Mr Ahmed on racial grounds as defined by section 2(1) of that Act, then Oxford University and Dr Zimmermann acted unlawfully by virtue of section 17 and 32 of the 1976 Act. It is unnecessary thus to set out sections 17 and 32 but convenient to set out the relevant parts of section 1, 2 and 3 of the 1976 Act.
8. Section 1(1) provides:-

"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;….."

Section 2(1) provides:-

"A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –

(a) brought proceedings against the discriminator or any other person under this Act; or

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or

(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."

Section 3(1) defines racial grounds as follows:-

"In this Act, unless the context otherwise requires –

"racial grounds" means any of the following grounds, namely colour, race nationality or ethnic or national origins;

"racial group" means a group of persons defined by reference to colour, race nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls."

9. By section 67(1) and (2) it is provided as follows:-

"(1) For the purposes of this Act a "designated" county court is one designated for the time being for those purposes by an order made by the Lord Chancellor.

(2) An order under subsection (1) designating any county court for the purposes of this Act shall assign to that court as its district for those purposes any county court district or two or more county court districts."

10. By section 67(4) it is provided as follows:-

"In any proceedings under this Act in a designated county court or a sheriff court the judge or sheriff shall, unless with the consent of the parties he sits without assessors, be assisted by two assessors appointed from a list of persons prepared and maintained by the Secretary of State, being persons appearing to the Secretary of State to have special knowledge and experience of problems connected with relations between persons of different racial groups."

11. That section replaced what was a requirement by virtue of section 19(7) of the Race Relations Act 1968 (the 1968 Act), that a judge "shall be assisted by two assessors appointed from a list of persons prepared and maintained by the Lord Chancellor, being persons appearing to the Lord Chancellor to have special knowledge and experience of problems connected with race and community relations." By section 19(7) the requirement was absolute; even the consent of the parties could not release the court from the obligation to try the case with two assessors. The slight change in the wording of the specialist knowledge and experience which such assessors should have, does not seem to us to be of importance in construing section 67(4).

The background to section 67(4)

12. There is a passage at page 328 of Race and Law by Anthony Lester and Geoffrey Bindman relating to section 19(7) of the 1968 Act which is worth quoting in full:-

"Although the procedure followed in cases under the 1968 Act is generally the same as that in any other county court cases, the composition of the court is different. In the ordinary way, cases in the county court are almost always tried by a judge sitting alone. But proceedings under the 1968 Act have to be heard by a judge assisted by two assessors, appointed from a list prepared and maintained by the Lord Chancellor of people appearing to him to have special knowledge of problems connected with race and community relations (s.19(7)).

During the Parliamentary debates, the Lord Chancellor explained the purpose of this provision. He conceded that it was a matter on which there were three perfectly rational views which anyone might take.

The first view, strongly put forward by the Street report, was that there ought to be special race relations tribunals; and many people agreed with that view. The second view taken by the lawyers mainly, was that they did not like the idea of special tribunals; that being lawyers they liked the ordinary courts. ….The third view is … a compromise. …That was that there should be selected county courts but that, while the judge should be the only person to decide the case, he should have assessors consisting of people with special experience in race relations to advise him.

The Government had adopted the third view because it was 'most anxious that this Bill … should receive the largest measure of support possible.' And although the Lord Chancellor later confessed that it was not his favourite clause in the Bill, he pointed out that many people 'feel strongly that race relations is such a sensitive subject that it ought to be dealt with by special race relations courts and not left to a judge who may have nothing at all to do with race relations or with coloured people."

13. The authors, after the above passage, criticised the rigidity of section 19(7) which required assessors even where the point in issue was a point of law. They also criticised the quality of the assessors so far appointed and the fact that so far no-one from the ethnic minorities had been appointed saying how important it was for the assessors to have the confidence of the minority as well as the majority.
14. Paragraph 96 of the White Paper 'Racial Discrimination' that preceded the 1976 Act is also worth quoting:-

"Under the 1968 Act the judge or sheriff is assisted by two assessors with special knowledge and experience of problems connected with community and race relations. These provisions enable the courts (like the industrial tribunals) to have the benefit of lay expertise and minority representation in dealing with cases under the race relations legislation. It is therefore proposed to retain these provisions in the Bill, while enabling the attendance of the assessors to be dispensed with by agreement between the parties. The assessors will be appointed from lists of persons prepared and maintained by the Home Secretary and the Secretary of State for Scotland, being persons appearing to them to have special knowledge and experience of situations covered by the Bill. The Government intends to ensure that members of racial minorities and others with relevant knowledge and experience are substantially represented in these lists. For example, those who have had experience of the work of the conciliation committees would have a valuable contribution to make."

The task of a fact finding tribunal in the above context

15. It is well recognised that the task of any fact finding tribunal in the area of race relations is difficult. Overt racism is unusual. Racism can manifest itself in ways which are difficult to detect and may be manifested by the actions of persons who are themselves unaware of their weakness. The passage of Neill LJ in King v Great Britain-China Centre [1992] ICR 516 at 528-529 approved in the House of Lords in Glasgow City Council v Zafar [1998] ICR 120 is the best starting point.

"From these several authorities it is possible, I think, to extract the following principles and guidance. (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that 'he or she would not have fitted in.' (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put it in North West Thames Regional Health Authority v Noone [1998] I.C.R. 813, 822, 'almost common sense.' (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."

16. We were also referred to the judgment of Sedley LJ with which Schiemann LJ and Blackburne J agreed in Anya v University of Oxford and another [2001] ICR 847 in which he stressed the difficulties inherent in race discrimination cases and further stressed the importance of reaching clear findings of fact on all factual issues both on events prior to the act of alleged discrimination and thereafter, those findings being essential to the critical issue.

What did Parliament have in mind as to the role of an assessor under Section 67(4)?

17. There are various means by which a tribunal may be provided with assistance from persons with a particular expertise or experience that differs from the appointment of assessors. The following examples come to mind. (1) Some tribunals include laymen with a particular expertise who join in actually reaching the decision in the sense that they can out vote the chairman e.g Employment Tribunals. (2) Under the former Order 40 rule 4 of the Rules of the Supreme Court, the court had the power to appoint its own expert who would prepare a report which would be disclosed to the parties and on which the parties would have the right to cross-examine. Under the new CPR this rule has disappeared. (3) Lay tribunals may receive the assistance of a lawyer e.g. magistrates where the direction on the law will normally be provided in open court by Justices Clerks. Authorities on the roles of those who contribute to the decisions of tribunals in circumstances such as these afford little assistance in determining the role of assessors appointed under section 67(4).
18. How much assistance can be gained from examining the role of the assessor in other areas in seeking to define the role of the assessor under Section 67(4)? Mr Bowers has sought to persuade us that the starting point for consideration of the role of the assessor under section 67(4) are the authorities dealing with the role of the assessor appointed in the admiralty jurisdiction or under the Rules of the Supreme Court, now CPR 35.15. The language of section 67(4), the type of person contemplated as an assessor under section 67(4), and the background to the passing of section 67(4), when contrasted with the language of CPR 35.15, the type of person likely to be appointed an assessor under that provision or in the admiralty jurisdiction, and the objective of CPR 35.15, indicate to us that it may be dangerous to assume that an assessor under section 67(4) is simply to be equated with assessors appointed in other areas.
19. Let us first consider the role of assessors in these contexts. By section 70 of the Supreme Court Act 1981 (which seems to have been derived from section 98 of the Judicature Act 1925) it is provided that "the court may if it thinks it expedient to do so call in the aid of one or more assessors specially qualified, and hear and dispose of the cause or matter wholly or partially with their assistance." The rules, formerly Order 33 rule 6, and now in slightly different terms CPR 35.15, give a very wide discretion to the court as to the way in which the court may gain assistance from assessors. CPR 35.15 provides as follows:-

"(1) This rule applies where the court appoints one or more persons (an "assessor") under section 70 of the Supreme Court Act 1981 or section 63 of the County Courts Act 1984.

(2) The assessor shall assist the court in dealing with a matter in which the assessor has skill and experience.

(3) An assessor shall take such part in the proceedings as the court may direct and in particular the court may –

(a) direct the assessor to prepare a report for the court on any matter at issue in the proceedings; and

(b) direct the assessor to attend the whole or any part of the trial to advise the court on any such matter.

(4) If the assessor prepares a report for the court before the trial has begun –

(a) the court will send a copy to each of the parties; and

(b) the parties may use it at trial. ……."

20. The Admiralty court has a very ancient history of sitting with assessors. It seems from the notes under the specific Admiralty Rule dealing with the appointment of assessors, CPR 61.13, that no distinction is drawn between an assessor appointed pursuant to CPR 35.15 and one appointed under the Admiralty jurisdiction. In the Admiralty jurisdiction the use of assessors is commonplace and Admiralty cases have defined some aspects of the role of an assessor which are of general application. Thus, it is now well established that assessors do not actually decide any issue; they assist or advise the judge so as to enable that judge to reach a conclusion. There are numerous Admiralty authorities which recognise that limitation on the role of assessors including that to which the judge's and our attention was drawn, The Aid [1881] PD 84. There is every reason to think that by using the word assessor in section 67(4) that this limit on the function of the assessor was intended to be made clear.
21. That said, simply saying that the judge and not the assessors is the final decision maker does not define with any precision what the involvement of the assessor should be in the decision making process. When an assessor is appointed under CPR 35.15 it will be noted that the requirement is that the assessor shall assist the court in dealing with a matter in which the assessor has skill and experience. In the Admiralty context that limits the advice to be given by "nautical assessors" to matters of "nautical skill", and in other contexts may limit the role of the assessors to the provision of what may come close to being expert evidence in a particular area. That Admiralty assessors provide assistance of this nature is confirmed by that part of the Admiralty rule which provides that where the court is sitting with assessors the parties are not free to call expert evidence without an order from the court.
22. In addition, in relation to the role assessors are to play, CPR 35.15 provides that the part to be taken is "as the court may direct." That leaves a wide discretion to the court as to the role to be played. Under CPR 35.15 the court may direct a report to be prepared, and if it does so that report must be sent to the parties and the parties may use it at trial. The court may also direct that the assessor "attend the whole or any part of the trial to advise the court on any such matter." The absence of any suggestion that any advice must be revealed to the parties in contrast to the position where a report is directed, would indicate that even in the CPR 35.15 context, it is not envisaged, at any rate as a matter of course, that advice will be revealed in order to allow the parties to make submissions on it.
23. Practice Direction 35.7 provides for the court to inform the parties who the assessor will be, of the "matter in respect of which the assistance of the assessor will be sought and of the qualifications of the assessor to give the assistance." It provides for an entitlement to object. It provides for any report being copied to the parties and makes clear that "the assessor will not give oral evidence or be open to cross-examination or questioning".
24. In the Admiralty jurisdiction it is sometimes the practice for the judge to ask his assessors to answer a question in the course of the hearing and to inform the parties of the advice received before completion of submissions. More commonly the judge will simply state in his judgment the questions he has put to his assessors and the answers they have given, and whether he accepts or rejects the advice tendered.
25. So the use that a judge makes of assessors is very much within his discretion. It will depend on the type of case. It will depend on how far assessors are fulfilling an evidential role and how far simply assisting in the decision making process, and of course a judge will have in mind at all times what fairness to the parties requires.
26. Mr Bowers' submission (as we have said) is that an assessor appointed under section 67(4) is in no different position from an assessor appointed under CPR 35.15. He indeed suggested that when one had regard to the County Court Rules Order 49 rule 17(3) which deals with claims under the Race Relations Act (the Act of 1976), and also with claims under the Sex Discrimination Act (the Act of 1975), the Disability Discrimination Act (the Act of 1995), and Disability Rights Commission Act (the Act of 1999), it was apparent that a drafting error had been made under rule 17 (3) which provides:-

"CPR Rule 35.15 shall have effect in relation to an assessor who is to be appointed in proceedings under section 66(1) of the Act of 1975."

27. He suggested that it was simply a mistake that the rule did not refer to Section 67(4) of the Act of 1976 thus bringing the appointment of assessors under that section expressly within the ambit of CPR 35.15. There is a trace of a similar submission in the skeleton argument for the appellants at paragraph 11.
28. Mr Bowers submitted that the application of CPR 35.15 limited the role of the assessor under section 67(4) to providing what might be termed "expert" advice on racial relations practice, for example training, equal opportunities policies or monitoring, and advising the judge on his approach to the evidence, by for example advising him of the possibility of discrimination emerging in subconscious ways. While, as we shall show, CPR 35.15 does not apply to section 67(4) assessors, we do not accept that in any event it would impose such a constraint.
29. To buttress his argument Mr Bowers relied on a passage in the speech of Viscount Simon L.C. in Richardson v Redpath, Brown & Co., LD [1944] AC 62 at page 70 a case where a medical assessor had examined a workman claiming compensation in private and then communicated the results again in private to the arbitrator. That is a very different type of case, and has little bearing either on the role of an assessor under CPR 35.15 or on the role of an assessor under Section 67(4).
30. The reality is that it is impossible to lay down strict rules of general application as to the way in which assessors may be used. Where assessors are appointed under CPR 35.15, the court has a broad discretion on how to use the same and the type of assistance they give may vary widely, dependant upon the character of the litigation. They may have an evidential function (in which event disclosure to the parties will be the normal rule) and a function which is more involved in assisting the evaluation of evidence (in which event disclosure to the parties will not be the normal rule and only occur if fairness demands it).
31. In our view section 67(4) assessors form a distinct category of their own; it was no accident that a section 67(4) assessor was not put under the CPR 35.15 umbrella by rule 17(3) quoted in paragraph 25 above. The terms of CPR 35.15 are not appropriate for the role of section 67(4) assessors.
32. The background to Parliament passing section 67(4) and the language of section 67(4) demonstrate that the court was not intended to have a wide discretion as to whether to use the assistance of assessors. Furthermore, the persons to be appointed as assessors are not scientists or seamen with special expertise in the true sense of that term, but ordinary lay people who have a particular experience in life, an experience which, if it is to be of any real assistance to a judge, involves being able to assess the likelihood of whether some conduct or another is racially motivated. Their expertise (if that is what it should be called) embraces assessing the implications of factual situations, and assisting in reaching a conclusion as to whether racism has played a part. That in our view points to it being the intention of Parliament that in race relations cases judges were to be assisted by assessors in the broadest sense of helping them evaluate the evidence in the area of race relations. The fact that an assessor may be involved in the fact finding role, whether it be of primary fact or by way of drawing inferences from the primary facts, does not mean that the assessor is actually deciding the facts. The ultimate decision has to be for the judge, but section 67(4) requires the judge to use the assistance of assessors unless (as the section provides) the parties otherwise agree.
33. The next question is to what extent the judge should disclose during the case and before final submissions the advice that he is getting from the assessors? Mr Allen submitted that as a matter of natural justice the parties were entitled to know the advice that the judge was getting so that they could deal with it. He referred us to Mahlikilil v The King [1942] AC 583; Bharat v R [1959] AC 533; Nwabueze v General Medical Council [2000] WLR 1760; Roylance v General Medical Council [2000] 1 AC 311 and R v Deputy Industrial Injuries Commissioner ex parte Jones [1962] 2 QB 677. Advice can of course cover a range of matters, and in our view as a general proposition Mr Allen's formulation is too wide. We suggest that the principles one gets from those authorities are these:-

1. If a fact finding tribunal or assessors involved in the findings of fact are to be directed on the law, that direction should normally be given in open court and the direction should be accurate; for the importance of open court see Mahlikilil (supra); for the importance of the direction being accurate see Bharat (supra);

2. If the advice is in the nature of expert evidence to which the parties should be entitled to respond, disclosure will normally be required; see Mahlikilil (supra).

3. Where a corporate judicial decision has to be made the detail of the discussion and the manner in which the conclusion was reached should normally remain confidential; see Roylance (supra)

34. Under section 67(4) the primary role of the assessors should be in the decision making process. They are not the final decision makers as in Roylance, but their role is assisting in the evaluation of evidence. That militates against any general obligation of disclosure prior to judgment. Of course there may be circumstances where disclosure will be necessary. For example, where a point arises as a result of the assistance of the assessors which the parties clearly did not have in mind and which they should be entitled to address, disclosure should be made. Furthermore assessors, despite their primary role, may provide a piece of information akin to expert evidence, and here, once again disclosure should be made. But overall parties should appreciate that the assessors under section 67(4) are using their experience to help the judge decide the facts, and should be prepared to address the judge and assessors on the issues of fact without disclosure of the assistance that the assessors are giving the judge in evaluating the evidence.
35. What should the judge say in his judgment about the use made of assessors? Again it seems to us that the detail and manner of a conclusion reached with the assistance of assessors is on the whole confidential. But in the context of section 67(4) there is an important aspect to bear in mind. It must be apparent from the judgment that the judge has complied with section 67(4) and availed himself of the assistance of his assessors in reaching his conclusions on issues relating to possible racism. The section is there because it is feared that the experience of the judge in a particular area may be lacking. The judge should thus make clear those areas where he has had recourse to the particular experience of the assessors.
36. Where the judge accepts the evaluation of the assessors it will normally form part of the reasoning for the conclusion ultimately reached, and having regard to the objective of the section never mind the obligation to give reasons, it must be right that this aspect is recorded in the judgment. With that there is no difficulty.
37. What however if the judge disagrees with the assessors? Disagreement between the judge and the assessors on issues relating to racism should in any event be rare, at least if the assessors themselves are agreed. Judges will appreciate that although the actual decision is that of the judge, the whole purpose of section 67(4) is to provide assistance from persons with experience in the relevant field, and the section will simply not be working if advice from assessors is being consistently rejected.
38. That in our view points to it being necessary where there is serious disagreement on such an issue, with the two assessors evaluating the matter one way and the judge disagreeing, for the judge to spell out in the judgment the view formed by the assessors and his reasons for taking a different view. That will enable the parties to see how the judge has used the assistance of the assessors and enable the Court of Appeal to conduct a proper review. That is not to say that every minor difference must be exposed. There are many tribunals where minor disagreement or different ways of expressing matters are not exposed in the decision. Public confidence does not require, and indeed might be undermined, if every difference of view were spelled out where the judge, after assistance, has formed a clear view.
39. If the two assessors disagree on an important issue, there is, as we see it, no difficulty in the judge recording the different advice he has received, and explaining his reason for preferring one view rather than the other.
40. In the result so far as the construction of section 67(4) is concerned we reject the narrow construction placed on the section by Mr Bowers. We also however reject Mr Allen's submission as to disclosure of advice from assessors prior to the making of submissions. The extent to which we accept his alternative submission as to what should be disclosed in the judgment is by now we hope apparent.

This case

41. We now turn to the way in which the judge dealt with the role of his assessors in this case. The case was tried over 6 or 7 days without any discussion between the judge and counsel as to the role of the assessors. It is impossible to imagine that the judge and his assessors, when adjourning for lunch, when adjourning in the evening and when meeting in the morning were not discussing the case as it unfolded. The assessors (we were told) either themselves asked questions or asked for questions to be put by the judge during the hearing of the evidence. On the first occasion when the judge raised with counsel the precise role of the assessors it was on the basis that the assessors had taken a full part in the hearing and were likely to have formed views on the evidence as to whether "there was or was not a racial element." (as the judge himself put it – see transcript at page 154B-C). On the evening of 4^th April after completion of the evidence the judge said this:

"I anticipate reserving Judgment in this matter. I think the proper course is to consider the matter with the Assessors who are here to help me, of course. Should there by any disagreement between myself or them – it is I that make the decisions – but I think it probably right, should there by any disagreement or difference in views, to invite them to submit their reasons in writing for taking a different view to me so that it can be considered in due course."

42. On that evening the judge was contemplating writing his judgment in consultation with the assessors, and he was contemplating that if there was any disagreement the assessors would set out their own views so that as with his judgment their views would be "public and subject to scrutiny" (see page 154B-C). That is not something the judge could have said if the assessors had not up until that stage been taking a full part in the proceedings. It is apparent that up until this stage he would clearly have felt no inhibitions about evaluating the evidence with the help of the assessors, and in all probability that is what he had already been doing.
43. Ms Monaghan did during this interchange on the evening of 4^th April suggest that if the assessors were going to deliver opinions they should be treated like reports prepared by assessors in other contexts, and made available to the parties for them to make submissions on the same. The judge's immediate reaction was to be against that process. Mr Bowers suggested that that course was inappropriate and the judge thus made clear on that evening that that was not a course he would follow.
44. On the next morning the judge was concerned about whether he was right in the procedure he had suggested. Mr Bowers then addressed the judge. He drew attention to section 67(4) of the Act of 1976, but he made the assumption that the assessors there being referred to were in the same position as an assessor appointed under section 63 of the County Court Act i.e. the section concerned with the general power in the court to appoint assessors "where the court thinks fit" and which allows the court to summon assistance "in such manner as may be prescribed". He referred the judge to the case cited in the notes in The Aid, (supra)
45. That case as indicated recognises that where a judge sits with assessors the decision must be that of the judge. That principle as we have already said clearly applies to assessors appointed under section 67(4), and thus the recognition by Mr Bowers, Ms Monaghan and the judge of that principle was clearly correct.
46. However the submission of Mr Bowers which followed certainly did not in our view properly define the role of a section 67(4) assessor. The following interchange took place between Mr Bowers and the judge :-

"J. But throughout it is my decision – I can't say it again really – I have to make up my own mind. They are there to assist me, but what I am really concerned with is that in the event that there is any difference to what extent, if at all, should that be made public …

C. Yes, your Honour.

J. … and if it should be made public by what means.

C. Well, your honour, we would submit that the Assessors are not at all involved in making any primary findings of fact nor inferences from the facts, nor as to the law to be applied, and if necessary – I won't take you through it, your Honour, but the AID is authority for those propositions …

J. I have no problem with – they are not involved with primary findings of fact, nor do I have any problem whatever with the law, but if they are not concerned with inferences, particularly in a case such as this, what are they concerned with?

C. With Race Relations practice, such as issues related to training …

J. Concerned with Race Relations practice, e.g. training; yes.

C. I am so sorry, training; the practice on Equal Opportunities Policies; the practice on monitoring; the circumstances in which discrimination may come out in subconscious ways.

J. Circumstances of discrimination coming out in subconscious ways.

C. Those are the types of matters which I appreciate may lead in to whether your Honour, but it is a matter for your Honour alone, will draw any inferences from the primary facts that your Honour finds.

J. Circumstances; the only one that at first blush as least, and subject to anything that Miss Monaghan has to say, would appear to be directly in point is circumstances of discrimination coming out in subconscious ways. I am not …

C. Yes, well there are situations we would accept where perhaps people's use of language or their conduct in relation to a particular matter may indicate that they have subconscious views about the race of a particular person. Those …

J. But that is really coming very close to an inference, isn't it?

C. Your Honour, it is for your Honour, having had the advice, and that is the word that is used in the AID, as to situations in which subconscious discrimination may be revealed by language, it is then for your Honour to decide whether, in the particular case on the particular primary findings of fact, it was in your Honour's opinion a matter upon which an inference should be drawn, and your Honour sees that I hope in the Headnote to the case where the third line says that …"

47. In addition Mr Bowers submitted in relation to what should appear in the judge's judgment as follows:-

"Yes, and we would submit, with respect, that bearing in mind the procedure set out by the AID and the County Court Act, it wouldn't be appropriate for your Honour to set out in the Judgment the advice that was given to your Honour, whether it is advice which is or is not contrary to your own opinion because of the primacy put upon the Judge deciding the case in accordance with your Judgment as to the law and the merits of that case."

Mr Bowers then made his final submissions.

48. When Ms Monaghan rose to make her submissions she started by making two points, firstly that Mr Bowers was right in the role he suggested was the appropriate role for the assessors, and secondly that he was wrong in suggesting that the advice should not be set out in the judgment. Her submission was in these terms:-

"C. First of all I don't take any issue with what Mr Bowers indicated this morning as to the role of the assessors. Of course they have no deciding function at all, they are there to give you advice and in the end it is your opinion which is paramount and indeed the only opinion that will determine the case.

Your Honour, however, the case introduced this morning by Mr Bowers, in my submission, does indicate that it is appropriate for you to identify the advice from the assessors. I say that, your Honour, can I take you to the last page of the case? You will recall this was a case where the assessor's view was in fact recorded because in error the Judge deferred to it."

49. Ms Monaghan then submitted to the judge (recognising the ruling against her the previous evening) that the appropriate place for recording the assessors' advice was in the judgment. It was at that stage the judge, on the assumption that that was right, sought help as to what advice would be relevant. Ms Monaghan reasserted aspects previously suggested by Mr Bowers. The judge pointed out that it was difficult to identify issues on which the type of advice suggested would be relevant. Furthermore, on the basis that the assessors were to be treated as experts providing advice on particular aspects, he indicated that Ms Monaghan would have to identify precisely those topics on which the assessors were qualified to advise, and where they could assist. The judge pointed out that the only real issue in the case was the attitude of one man – Dr Zimmermann, and that was a question of fact and not a matter for expert evidence.
50. Mr Allen strove to persuade us that Ms Monaghan was submitting that the role of the assessors under section 67(4) was as we have now identified it. It seems to us clear that she was not. The thrust of her submissions was to support the more limited role that Mr Bowers was suggesting i.e. an expert advisory role, not a role in evaluating evidence and assisting the judge in that regard.
51. In the result the judge's judgment when dealing with the role of the assessors was as we have set out in paragraph 5 above.
52. That paragraph records the agreement of counsel as to the role of the assessors. In our view the judge was justified in drawing the conclusion that counsel were agreed. It is also a fact that the notice of appeal does not challenge the judge's conclusion in that regard.
53. Because the judge was persuaded that the role of his assessors was more limited than he had originally believed, he did not give any indication in his judgment of the views that they must surely have expressed in the course of the lengthy hearing, or of his reaction to those views. In the event it may be that the judgment gives a less than complete account of the reasons that led the judge to his vital conclusion that Dr Zimmermann was not racially motivated in discriminating against Mr Ahmed.

How then should the appeal be disposed of?

54. We shall deal first with the grounds of appeal. Before stating our conclusions on grounds 1 to 4 we propose to consider the other grounds.

Grounds 5 & 6

55. It is alleged that the judge failed to have regard to and make findings upon the evidence on the defendant's policies and practices on eliminating racial discrimination, equality of opportunity and related matters. This criticism relates to paragraph 2 of the judge's judgment. It is right to quote the paragraph as a whole:-

"Thus, I am concerned with specific allegations that have to be considered in the framework of the pleadings: see Qureshi v Victoria University of Manchester, cited at length and approved by the Court of Appeal in Anya v University of Oxford (2001) IRLR 317 at 380. I am not directly concerned with general questions, such as systems or attitudes that may or may not exist at Oxford University or should or should not exist at any properly run institution. Paragraphs 32-37 of the claimant's closing submissions, under the heading "The University", refer to a number of general matters but these are not canvassed in the pleadings, where no complaint (other than that mentioned above) is directed against Oxford University in its own right. As I indicated to Ms. Monaghan, I cannot fairly enlarge the scope of my inquiry to take account of such general matters, which would require very careful thought and probably expert advice before reaching any conclusion. Nothing in this judgment, therefore, is intended to reflect favourably or unfavourably on general attitudes or systems in relation to racial matters at Oxford University. Of course, I have well in mind the case law, to which I have been referred, and I recognise that racial discrimination in institutions is something that may occur, even in the presence of substantial ethnic minorities. As a general proposition it seems to me that the less attention that is given to Codes of Practice and to the views of those experienced in the problems that may arise in the field of race relations, the greater the risk of wrongful discrimination. But that is not to say that discrimination necessarily follows from poor practice, any more than it can be eliminated by good practice; so much depends on the individual case and it is the individual case with which I am concerned."

56. On a fair reading of that paragraph, what the judge is saying is first that there had been no pleading in relation to the systems which were said to exist or not to exist at Oxford University which would have enabled the University to have addressed those points. Secondly however, he is recognising that the absence of attention to Codes of Practice does give rise to greater risk of racial discrimination. As we would understand the reasoning of the judge he was not prepared to make general findings in relation to the position at Oxford University, but he would assume in making his findings that there were not Codes of Practice affecting the conduct and/or attitudes of Dr Zimmermann and others. This same point the judge made during his interchange with Ms Monaghan as to the role of the assessors, (see pages 164C to 165D). He was indicating that it was a matter of common sense and one indeed with which he was sure the assessors would agree that the less safeguards one has in place the greater the risk of racial discrimination. Once having appreciated that fact, as it seems to us, it was not incumbent on the judge to make detailed findings in relation to the absence of Codes of Practice at Oxford University.

Grounds 7, 8 9 and 10

57. It is alleged that the judge erred in finding that the difference in treatment he found was not on racial grounds when he had rejected the defendants' explanation. It is alleged that he erred in relying upon a matter not pleaded by the defendants in their fully pleaded defence. It is alleged that the judge failed to have regard to the evidence of Mr Pirani as to the treatment afforded to him by Dr Zimmermann. Finally, it is alleged that the judge reached a decision which no reasonable tribunal properly directing itself could have reached.
58. The position of Mr Pirani is crucial. It is true that Mr Pirani did recognise in his evidence that Dr Zimmermann had asked him whether English was his first language and accepted that question would have been asked because he was of Asian origin. But, as the judge records in his judgment, Mr Pirani came to give evidence in support of the case of Oxford University and Dr Zimmermann. The judge said this in relation to Mr Pirani's evidence:-

"He was of similar ethnic background to the claimant. If he had any bias, I would have expected it to operate against Dr Zimmermann, the only supervisor in all the institutions he had attended with whom he "never really gelled". Dr Zimmermann had shocked and stunned him by failing him in the qualifying exam and he might well have perceived that Dr Zimmermann had unfairly destroyed his academic career. There has been no suggestion of any animosity between Mr Pirani and Mr Ahmed and there is nothing that leads me to think that he has anything to gain by coming out publicly in Dr Zimmermann's favour. Yet he took the trouble to come from Northern Ireland to tell me: "I do not think that Nadeem was discriminated against on the ground of race. I simply think that Nadeem has read Dr Zimmermann's personality all wrong and has got the wrong end of the stick". Mr Pirani was a colleague of Mr Ahmed for a year, an intelligent and alert man with experience of life, differing cultures and various institutions. I find it unthinkable that, if there had been anything racially untoward in Dr Zimmermann's attitude to Mr Ahmed, Mr Pirani would not have noticed and, if he had noticed, I am certain that Mr Pirani would not have supported Oxford University in the terms he did."

59. Furthermore, the whole of the judge's judgment is well reasoned and compelling. It is structured in the following way. First, he rejected with detailed reasons 8 of the 9 complaints that Mr Ahmed raised and there is no challenge to that rejection in the notice of appeal. It is thus in one area only, the failing of the examination set in June 1999, that the judge did find there had been discrimination but he found it in trenchant terms. He held that "however I look at it, Mr Ahmed was not a beginner in Arabic and I find it incredible that he should have failed, granted fairness and equality in marking" (see paragraph 47). The judge further found

"I do not believe that his Arabic was so poor as to justify an "unequivocal failure" as compared with the passing "without reservation" of a complete beginner (a reference to Mrs Clark). I therefore hold that in this respect Dr Zimmermann treated the claimant less favourably than he treated Mrs Clark. As a result he clearly suffered a detriment in that he, unlike Mrs Clark, was unable to proceed to the second year without re-sitting the examination."

60. The judge then set out his conclusions in the following terms:-

"80. Here, then, there was a difference in treatment involving persons of a different race, colour and ethnic origin, Mr Ahmed and Mrs Clark. I am in no position to make a true assessment of Mr Pirani's proficiency in Arabic and I cannot say, one way or the other, whether he was treated less favourably but the result of the qualifying exam in his case is capable if being seen as suspicious, especially since Dr Zimmermann in paragraph 18 of his witness statement says that it was for Mrs Clark that the test was designed by him to give a chance. I heard no good explanation from Dr Zimmermann why Mr Pirani, who like the claimant could evidently have done with a shift of the goalposts, should not have received that benefit.

81. It would be no hard task to infer from these facts that racial considerations, conscious or subconscious, were an effective cause of the less favourable treatment accorded to Mr Ahmed. Such an inference is made easier by the fact that, in my view, Dr Zimmermann was not a particularly convincing witness, possibly because he took his stand on ground that could not be defended, namely that there was no less favourable treatment, possibly to some extent because he was not completely fluent in English and found himself in unfamiliar territory. While, of course, the more favourable treatment given to Mrs Clark can be seen to be because of her limited ability in Arabic, as Mr Bowers observes in his closing submissions, I have no explanation why a limited ability in Arabic, which in the ordinary way might be expected to lead to a fail rather than a pass, should be the cause of favourable treatment.

82. In recognition of this, I have given particularly anxious consideration to whether, in the application of common sense and judgment to the facts and in the assessment of the issues and the witnesses, I should infer racial grounds. But in the end, exercising my judgment as conscientiously as I can, I find that the force of the primary facts is insufficient to justify that inference. I would go further and say that, despite superficial appearances, this is not, in my judgment, a borderline case which should be seen as decided on the basis that the claimant has not proved his case; while it may always be difficult, especially in the case of subconscious motivation, wholly to dismiss any possibility of racial motivation, my consideration of all the evidence leads me to the clear and affirmative view that Dr Zimmermann was not in any way motivated by race."

61. Thereafter the judge quoted the paragraph in relation to Mr Pirani, which we have already quoted, and gave six further detailed reasons why, in his judgment, it was not a borderline case and how he had reached a clear and affirmative view that Dr Zimmermann was not in any way motivated by race.
62. But for the point relating to the role of the assessors to which we have to return, we have no doubt that the appeal on the other grounds should be dismissed. It seems to us there is no reason why the judge, albeit rejecting Dr Zimmermann's assertion that there was in fact no difference in treatment, should not be clear nevertheless that Dr Zimmermann was not motivated by race. Particularly compelling is the fact that Mr Pirani, an Asian who would not on any view seem to be a supporter of Dr Zimmermann, should have come to give evidence in favour of the University. Whatever else as it seems to us, this is not a case in which it could conceivably be said that no reasonable tribunal could have reached the conclusion which it did.
63. At times it seemed to us that the submission of Mr Allen was that if ever the explanation provided for discrimination were rejected, the court had no choice but to find that the discrimination was on racial grounds. That cannot be right as a matter of logic and where such compelling reasons as were given by the judge in this case are forthcoming, a court must be entitled to find no racial motive even in such circumstances.
64. We thus return to grounds 1 to 4 and the role of the assessors. As already indicated it was not in fact a ground of appeal that the judge had failed to use his assessors properly; the attack related to a failure to disclose advice prior to final submissions and a failure to record advice received in the judgment. The inter-change between counsel and the judge already quoted extensively in paragraphs 46 to 48 above, demonstrated that the judge had not received any advice in the nature of expert evidence, nor was it suggested as being a possibility by Mr Allen on the appeal that he had received some such advice. Thus, so far as the pleaded grounds of appeal are concerned, if they are to be made good they must be made good by reference to advice in relation to the assessors' role in the decision making process.
65. In relation to the decision making process (as we have held) there was no duty to disclose what advice or assistance the judge was obtaining in that role during the hearing, and ultimately we did not understand Mr Allen to be pressing this aspect. As regards recording assistance or advice in the decision making process in the judgment, the judge did not do so because he understood it to be common ground that the assessors did not have any such role. Thus the grounds of appeal themselves have little merit. But what has given us much greater anxiety is the possibility that the judge may not have made proper use of the assessors, particularly in the preparation of his judgment, a point developed during the appeal.
66. So far as use during the trial is concerned, as we have explained in paragraphs 40 and 41 above, there is every reason to believe that the judge used the assessors in precisely the way they should have been used. Up until the evening before final submissions were being made, the judge clearly thought that the assessors had the wider role which we have described as appropriate. As regards the further role which they should have played in the preparation of the judgment, that is a role they did not perform because of what the judge understood to be the agreed position of the parties. Although it cannot be said that there was an agreement as between the parties as contemplated by section 67(4) as being a circumstance where an assessor should not sit, that provision, as it seems to us, does have some relevance in relation to what occurred in this case. If the parties can agree not to have assessors at all, then it seems to us that they could also agree that assessors sitting could have a limited role. Although it would be unfair to suggest that such agreement had actually been reached in this case, because for such an agreement to be effective it must have been formalised, and formalised before the hearing commenced, it does not appear illegitimate if justice so requires to preclude a party from departing from what in effect became an agreed position.
67. Justice in this case requires us not simply to consider the position of Mr Ahmed, but also at the very least the position of Dr Zimmermann who was accused of discriminating on racial grounds and after a lengthy trial has been cleared by the judge of any such charge. That said, if we thought that there was a serious risk that Mr Ahmed had suffered a miscarriage of justice by virtue of the misunderstanding as to the role of the assessors, then despite the fact that that was induced by submissions of both counsel, we would reluctantly order a retrial before a differently constituted tribunal. We have given anxious consideration to that question, and the detailed reasons of the judge, and are clear that no miscarriage of justice has taken place. Accordingly we decline to do so, and the appeal will be dismissed.