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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bennett v London Borough Of Southwark [2002] EWCA Civ 223 (21 February 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/223.html
Cite as: [2002] IRLR 407, [2002] ICR 881, [2002] EWCA Civ 223, [2006] ICR 655
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT
APPEAL TRIBUNAL (His Honour Judge
Peter Clark).
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE SEDLEY
and
LORD JUSTICE LONGMORE
____________________
| CARLA BENNETT |
Appellant |
|
| - and - |
||
| LONDON BOROUGH OF SOUTHWARK |
Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Andrew Burns (instructed by Legal Contract Services) for the Respondent
____________________
Crown Copyright ©
- These cross-appeals arise out of some regrettable events which occurred in industrial tribunal proceedings as long ago as January 1997.
- It is not necessary to say more about the initial claim than that Mrs Bennett, who is black, had worked as a care manager for the London Borough of Southwark (LBS) from 1985 to September 1994, when she was dismissed. By then she had already, in August 1993, presented an originating application detailing a prolonged history of what she contended was race and sex discrimination. To this, following her dismissal, she added a further originating application adding allegations of victimisation. She gave consolidated particulars of the two claims, and they were listed for hearing on 1 July 1996 with a 10-day time allocation.
- At the hearing, chaired by Mr Lamb, the applicant was represented, as 4she had been in the internal procedures, by Mr Errol Harry, who (relevantly) is black. He is himself a former employee of LBS and a regular lay representative in employment tribunals. The ten days were insufficient, and the hearing was adjourned part-heard to 27 January 1997 with an allocation of 8 more working days. On 27 January the applicant was absent, apparently suffering both from flu and from a bad back. Mr Harry sought an adjournment, but LBS opposed it and it was refused. The tribunal took into account the loss of allocated time and resources which would result from an adjournment; the expense to LBS; the further delay of many months; and the fact that the applicant had given her evidence and that Mr Harry could cross-examine the remaining LBS witnesses in her absence.
- After lunch Mr Harry, who had by now spoken to Mrs Bennett and been told that she was unhappy with the case proceeding in her absence, reapplied for an adjournment. The tribunal gave him till next morning, when he renewed the application. He made two remarks in particular:
- The Tribunal, having retired to consider matters, concluded that they could not continue to hear a case on race discrimination in which they themselves had now been accused of racism. They returned and said that this was the case and that in consequence they were discharging themselves from further participation. They put the matter over to a fresh tribunal, leaving to that tribunal any application LBS might want to make to have the case struck out, and for costs.
- The regional chairman directed relisting before a tribunal chaired by Mr Warren. Its sole remit was to decide whether to strike out the proceedings on the ground (spelt out in R 13(2)(e) of the Employment Tribunals Rules of Procedure 1993) that the manner in which the proceedings had been conducted was scandalous, frivolous or vexatious. The Warren tribunal sat on 30 May, and on 7 July 1997 promulgated a decision striking out the claims on the ground that Mr Harry's conduct of Mrs Bennett's case before the Lamb tribunal had been scandalous. They made a costs order for just under £500 against her on the ground of unreasonable conduct.
- Mrs Bennett gave notice of appeal against the Warren tribunal's decision. It was out of time, but Morison P enlarged time and also, sensibly, gave both sides permission to appeal and cross-appeal out of time against the Lamb tribunal's decision which lay at the root of the Warren tribunal's decision. The main submissions that thus came before EAT were these: the applicant submitted that the Lamb tribunal should not have recused itself, at least without notice; but if that was right, LBS said the Warren tribunal decision should nevertheless stand, albeit it ought properly to have been made by the Lamb Tribunal. The EAT (Judge Peter Clarke presiding) elaborated the second issue in this way: "Should the cross-appeal by Southwark be allowed, and if so, ought we, exercising our powers under s. 35(1)(a) of the Employment Tribunals Act 1996, to affirm the decisions reached by the Warren tribunal?"
- The EAT concluded, as I would, that the Lamb tribunal was wrong to recuse itself as and when it did. I will come to the reasons why in a little more detail later in this judgment. The critical question was therefore whether the decision to strike out the proceedings, predicated as it was on the Lamb tribunal's decision, could stand. The EAT rejected the applicant's submission that the right course was for the Lamb tribunal to reconvene and continue: this Judge Clarke considered to be precluded by the view the Lamb tribunal had arrived at, rightly or wrongly, as to its own ability to decide the case impartially. The alternatives were that the case should restart before a fresh tribunal or that the whole claim should be struck out. The EAT decided that the latter was the right course in other words that the Warren tribunal had done the right thing, albeit in the wrong circumstances - and that in the exercise of EAT's own power to make any order an employment tribunal (here presumably the Lamb tribunal) could make the claims should be struck out. This appears to be the course they took, notwithstanding that in their final paragraph they said that they were dismissing the appeal against the Warren tribunal's decision. The EAT did not explain why it needed to exercise its own power rather than simply uphold the Warren tribunal's decision, but it must have been because, in the light of its first conclusion that the Lamb tribunal ought not to have recused itself, the Warren tribunal had been without authority to adjudicate.
- With the permission of Longmore LJ Mrs Bennett now appeals against the eventual decision that her claims should be struck out, and LBS cross-appeals against the EAT's decision that the Lamb tribunal was wrong to recuse itself in the first place. At the hearing we granted Mr Sykes permission to amend Mrs Bennett's grounds so that they fully reflected the issues now before the court.
- Evidence
- It is relevant to the issues to which it is now necessary to turn that both the applicant and her representative gave evidence to the Warren tribunal, where Mrs Bennett stood by what Mr Harry had done. Of Mr Harry's attitude the tribunal records the following:
- The EAT, who had affidavits from both of them, said:
- Law
- Rule 13 of the Employment Tribunals Rules annexed as Schedule 1 to the Employment Tribunals (Constitution etc.) Regulations 1993 provides:
- Section 35(1) of the Employment Tribunals Act 1996, reproducing almost verbatim the provision previously contained in the Employment Protection (Consolidation) Act 1978, Sch. 11, paragraph 21, provides:
- The question for this court is whether the dismissal of the applicant's claims in the circumstances in which it occurred was a proper use of the power to strike out proceedings which have been conducted in a scandalous manner. To answer the question it is necessary to resolve the following issues:
- I omit from this list the question whether there was sufficient compliance by the Warren tribunal and the EAT with the requirement of Rule 13(3) for notice. Although Mr Sykes, for Mrs Bennett, has tried to suggest that there was no or inadequate notice that the former was thinking of striking out the claims and that the latter was thinking of substituting its own decision for that of the former, it is evident that any failure to appreciate what the Warren tribunal was about was the product of Mr Harry's obtuseness, and that an advocate in the EAT (where the same counsel appeared as before us) should have been alive to the possibility of a s.35 order if the decision fell out in a particular way.
- It is necessary first to be clear about what Mr Harry did wrong. Fearlessness, which is rightly regarded as a virtue in professional advocates, can occasionally extend to standing up to courts in difficult confrontations. The advocate will not always be right, but so long as he or she remains civil, submissions which are not only strong but unpalatable may be made if the advocate's duty or judgment requires it. A submission that a tribunal should recuse itself (to adopt the handy American term) may come into this class, and no tribunal should be offended if it is properly made. What is unacceptable is making such submissions gratuitously or deviously for example in order to secure an adjournment which cannot otherwise be got. So is making a submission, especially one of this kind, in an offensive manner. Our system of justice depends far more than is often realised (at least by people who have not seen some other countries' systems in operation) on a level of courtesy and formality which ensure that hard things can be said without giving insult or offence. I see no reason in this respect to expect a lesser standard of unqualified representatives than is expected of professional lawyers.
- Mr Harry was perfectly entitled to make the application he did for an adjournment, and to renew it after taking instructions. I do not think even the second renewal can rightly be called vexatious. He was most certainly not entitled to back it up by setting out to create a situation in which the tribunal would have to recuse itself; but while his conduct was such as to push them in that direction, I do not see any evidence which would allow us to infer that it was his aim to do so, and Mr Burns (who was there at the time as counsel for LBS) has very fairmindedly not suggested the contrary. Mr Harry's transgression was to resort to insult. The insult was not his choice of language to characterise the typical barrister: advocacy would be a dull affair if vivid phraseology were not tolerated, and the plummy-voiced white Oxford-educated barrister is not a bad stereotype as stereotypes go (though "Oxford" should probably be "Oxbridge": see my chapter 'The future of advocacy' in Discriminating Lawyers, ed. P.Thomas, 2000). It was his allegation that the tribunal was treating his application unfavourably because he was not white and because he was not a barrister. Both were serious things to suggest in any tribunal, but especially one dealing with race discrimination cases and required to give a full and fair hearing to all advocates, qualified or not.
- Here it is necessary to step with great care. If a situation were ever to arise in which it could responsibly and relevantly be said that a tribunal or court was treating black and white advocates differently, there would be no impropriety in a measured submission to that effect. In the present case there was no basis whatever for such a submission to the Lamb tribunal and Mr Harry, given the opportunity, has not suggested that there was. He has sought, rather, to explain his remarks as an unfortunate overstatement of his sense that as a lay representative he was not making the headway that a professional advocate would make.
- In this light I turn to the issues.
- I have said that I agree with the EAT that the Lamb tribunal should not have recused itself as and when it did. Mr Burns on LBS's cross-appeal contends that it was right to do so because once a tribunal has formed the view that it cannot continue to handle a case with impartiality nothing the parties say can enable it to resume with an impartial mind. This assumes that the tribunal has reached the point at which it can properly form such a view. Mr Burns submits that this no longer matters: what's done is done. I respectfully disagree. Undoubtedly there are situations in which the emergence, for example, of an unanticipated financial interest means that the tribunal has already reached the point of no return whatever the parties say. But where the reason is an advocate's aberrant and offensive behaviour, as it was here, there are numerous reasons not to abort the hearing until a serious endeavour has been made to defuse the situation, and more than one way to do so.
- One way (and perhaps the best way in the case of a single outburst) is to ignore it. Another, if having retired the tribunal feel as this tribunal did, is to point out to the advocate the potential consequences of his behaviour and invite him, if he cannot justify his remarks, to withdraw them. If he withdraws them, there is no reason in the ordinary way why the case cannot go on.
- Even if he does not withdraw, and assuming of course that no proper justification is offered, the tribunal may still need to consider whether, given the potential injustice to the other side and the public expense which recusing themselves will bring, they cannot, perhaps after a break, continue with the hearing with unclouded minds. Courts and tribunals do need to have broad backs, especially in a time when some litigants and their representatives are well aware that to provoke actual or ostensible bias against themselves can achieve what an application for adjournment cannot. Courts and tribunals must be careful to resist such manipulation, not only where it is plainly intentional but equally where the effect of what is said to them, however blind the speaker is to its consequences, will be indistinguishable from the effect of manipulation. In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, 479, a specially constituted Court of Appeal (Lord Bingham CJ, Lord Woolf MR and Sir Richard Scott V-C) adopted a passage from the judgment of the Constitutional Court of South Africa in President, RSA v SA Rugby Football Union [1999] (7) BCLR (CC) 725, 753, which included this:
- If the advocate persists in defying the tribunal without arguable justification, the tribunal can invite the Attorney General to consider proceeding against him for contempt of court. In the light of the decision of this court in Bache v Essex County Council [2000] IRLR 251, however, it is not open to the tribunal simply to refuse to hear the advocate any further, and this may in turn have a bearing on whether misconduct in which the advocate threatens to persist amounts in a given case to the scandalous conduct of proceedings.
- But this case is not in that league. While Mr Harry's explanation of his conduct leaves a great deal to be desired (and while Mrs Bennett's expressed attitude to it makes the worst that could be made of the situation he created) it suggests pretty clearly that if he had been confronted by the Lamb tribunal with the impending consequences of his intemperate outburst he would, not too graciously perhaps, have climbed down. As the EAT put it: "Before discontinuing the proceedings [the tribunal] ought to have required Mr Harry to affirm or withdraw his accusations." It is possible, of course, that he would have refused to do either thing but there was only one way to find out. In other words a point had not been reached, and was not necessarily going to be reached, at which the entire lengthy hearing had to be aborted. I think that the Lamb tribunal, although its motives command respect, retreated prematurely from the field.
- While the issue of scandalous conduct of proceedings does not depend on the tribunal's self-recusal, it is necessary to be clear what conduct we are looking at. Is it simply Mr Harry's conduct of the case up to the point when the Lamb tribunal recused itself? Is it that conduct plus his conduct and evidence before the Warren tribunal and possibly too before the EAT? Is it his conduct of the case as it would or might have been had he been given the chance to retract? I do not see, if I am right in my conclusion that he should have been given that chance, how it is permissible to judge his conduct of the case without regard to what might have happened had the tribunal, as it should have done, gone the next mile.
- If that is done, the basis of the Warren tribunal's decision falls away. Its conclusions include these passages:
- But the predicate of the use of the strike-out power by either the Warren tribunal or the EAT was not simply that Mr Harry's own conduct should be able to be characterised as scandalous: it was that the manner in which he had been conducting the proceedings on the applicant's behalf should be able to be so characterised. This requires attention to be paid to three distinct things: the way in which the proceedings (which had gone on for 10 or 11 days) had been conducted; how far it is right to attribute any misconduct of the proceedings to the applicant herself; and the significance in this context of the epithet 'scandalous'.
- We have not heard full argument on these questions, and they do not feature as discrete points in either the grounds of appeal or the grounds of cross-appeal; but they cannot be entirely ignored on an appeal such as this. In the light of such submissions as have been made, I venture the following views on them.
- First, the manner in which a party's proceedings are conducted is not the same thing as, though it may well be evidenced by, the behaviour of the party's representative. What the rule is directed to, it seems to me, is the conduct of proceedings in a way which amounts to an abuse of the tribunal's process: abuse is the genus of which the three epithets scandalous, frivolous and vexatious are species. Secondly, what is done in a party's name is presumptively, but not irrebuttably, done on her behalf. When the sanction is the drastic one of being driven from the judgment seat, there must be room for the party concerned to dissociate herself from what her representative has done. A principal can always prove a want of actual authority, and I do not believe that the advocate's ostensible or implied authority, large as it is, extends (at least in the absence of ratification) to abusing the judicial process.
- Thirdly, there may be less to the word 'scandalous' than meets the eye. In its colloquial sense it signifies something that shocks the speaker. This seems to be the sense in which the Warren tribunal has used it: "the admitted conduct of Mr Harry was quite scandalous"; and it is their evaluation which the EAT has explicitly adopted. The trinity of epithets 'scandalous, frivolous or vexatious' has a very long history which has not been examined in this appeal, but I am confident that the relevant meaning is not the colloquial one. Without seeking to be prescriptive, the word 'scandalous' in its present context seems to me to embrace two somewhat narrower meanings: one is the misuse of the privilege of legal process in order to vilify others; the other is giving gratuitous insult to the court in the course of such process. Each meaning has lexicographical and legal support, the first in the principal OED definitions of 'scandal' and 'scandalous', which have to do with harm and discredit; the second in 'scandalising the court', a historical form of contempt; and both in Daniel's entry in Byrne's Dictionary of English Law cited in his judgment by Ward LJ. These considerations are not of course exhaustive, but they are enough to make it plain that 'scandalous' in the rule is not a synonym for 'shocking'. It is a word, like its sibling 'frivolous', with unfortunate colloquial overtones which distract from its legal purpose: see the remarks of Lord Bingham CJ in R v Mildenhall Magistrates Court, ex parte Forest Heath DC (The Times, 16 May 1997).
- There is a further hurdle to be surmounted in any strike-out application, as both counsel before us agree. It is that if the conduct of a party's case is shown to have been scandalous, it must also be such that striking out is a proportionate response to it. This seems to me, as it seemed to counsel, to be a commonsense axiom requiring no resort to the article 6 of the European Convention on Human Rights. But evidently because it was not argued this requirement was not addressed at all by either the Warren tribunal or the EAT.
- In the present circumstances there is no need to decide the proportionality of striking out as a response to Mr Harry's conduct of the proceedings because for other reasons the decision to strike out cannot stand. But proportionality must be borne carefully in mind in deciding these applications, for it is not every instance of misuse of the judicial process, albeit it properly falls within the description scandalous, frivolous or vexatious, which will be sufficient to justify the premature termination of a claim or of the defence to it. Here, as elsewhere, firm case management may well afford a better solution. For the present I simply record my own doubt whether striking out could really have been a proportionate response to the situation once the Lamb tribunal's error in recusing itself had been recognised by the EAT.
- There remains the important question of the correct use of s.35(1) of the Employment Tribunals Act 1996. This does not feature in the notice of appeal or skeleton argument, but with the court's permission, and assisted by Mr Burns' readiness to take short notice of the point, Mr Sykes has argued it. The point in any event goes to the EAT's jurisdiction and so cannot be sidestepped.
- In reliance on this court's decision in Morgan v Electrolux Ltd [1991] IRLR 89 Mr Sykes submits that the EAT can only use the power to substitute its own decision where it is incontestably the decision which, properly directed in law, the lower tribunal would have reached. At paragraph 11(5) of the report Balcombe LJ, giving the judgment of the court, quoted and adopted what Sir John Donaldson MR had said in O'Kelly v Trusthouse Forte plc [1983] ICR 369:
- Mr Burns submits that the principle is confined to matters of judgment, such as the fairness of a dismissal, on which the first-instance tribunal cannot be second-guessed, and that it does not embrace cases where the appeal tribunal, once it has got the law straight, is as well placed as the first-instance tribunal to evaluate the facts that have been found. The argument is attractive, but it is foreclosed by the clear and comprehensive construction of the provision in the earlier decisions of this court.
- Once it is established that striking out was not a foregone conclusion, it follows on authority that it was not open to the EAT to substitute its own decision for that of the Warren tribunal, any more than it was possible in the circumstances to uphold it.
- The result is both inexorable and deeply depressing. This protracted case must start again. After 10 days' hearing in mid-1996, the Lamb tribunal mistakenly aborted the proceedings in early 1997. The Warren tribunal later that year, correctly (since it had no appellate role) treating the Lamb tribunal's decision as properly taken, struck out the proceedings on a basis which the EAT later, and rightly, held to be false, and did so by reasoning which I would also hold to have been intrinsically unsound. The EAT, which mainly because of its own overcrowded lists but also because of the complications of this particular case took from August 1997 to January 2001 to decide the appeal and cross-appeal, correctly identified the Lamb tribunal's error but adopted the Warren tribunal's errors of reasoning and went on to make an order substituting their own decision for that of the employment tribunal which they had no power to make. The entire house of cards has now collapsed. There is no way in which, even if it could be reconstituted, the Lamb tribunal could be expected to resume the hearing after a gap of five years. The proceedings stand where they stood on the eve of 1 July 1996, and directions must be given for their disposal. The tribunal hearing them must do what it can in the face of a colossal lapse of time to do justice between the parties on such reliable evidence as can now be adduced.
- While it will be no part of the new tribunal's task to allocate blame for the lapse of time, I do not want to part with this case without recording that in my judgment the blame for what has happened rests entirely with Mr Harry. (He was not separately represented before us, but Mr Sykes, who has taken over his role, has been able to say whatever could be said in his defence.) It was he who undertook the presentation of the applicant's case, he who let her down by responding insultingly to the perfectly legitimate refusal of an adjournment, and he therefore who provoked the reactive misjudgment which has led to this whole sorry sequence of events and the expenditure of heaven knows how much public money on sorting it out.
- There are plenty of lay representatives who afford real help to their clients and to employment tribunals, sometimes with the advantage of more and better practical knowledge than lawyers possess. But a further look may need to be taken at the power (or impotence as it at present seems to be) of employment tribunals to shut out representatives whose behaviour jeopardises both their own clients' cases and the proper functioning of this important segment of our system of justice. It is not satisfactory that the only sanction is to wait until the representative crosses the high threshold set by Rule 13(2)(e) and then to penalise not him but his client by striking out the case.
- The costs order has not been separately debated. It must fall with the striking out order. I would allow the appeal, set aside the order striking out the claims and direct a fresh hearing of the originating applications.
- I agree with Sedley LJ. for the reasons that he gives.
- This case fills me with despair. First there is the inexcusable petulance displayed by Mr Harry, the appellant's legally untrained advocate. Secondly there is the unfortunate capitulation by the Lamb Tribunal to his insolence. Thirdly there is the five year delay between the Lamb decision and this judgment. Finally there is the horrific prospect of re-hearing events some already over a decade old. Not without serious misgiving, I agree with my Lords in the unhappy conclusion that this case must start all over again.
- The question may be asked whether the Lamb Tribunal should have withdrawn as it did. There appear to me, however, to be two quite separate issues which arise. The first is whether the Tribunal should have allowed themselves to be driven to the conclusion, as they expressed it in paragraph 15 of their judgment, that:-
- The second issue is whether, having reached that conclusion they had to withdraw.
- Both the Employment Tribunal and Sedley L.J. have criticised the Lamb Tribunal for over-reacting to Mr Harry's abuse. The criticisms are well founded. In the Employment Appeal Tribunal's view:-
- Judicial duty is to be performed both without fear as well as without favour. The Tribunal did not act fearlessly when they capitulated to the inexcusable petulance and insolence displayed by Mr Harry. They were wrong not to listen to Mr Harry's diatribe with phlegmatic fortitude, retiring, if necessary, to compose themselves and to cool the advocate's ardour, and then calmly continuing. Instead they allowed invective to infect them with prejudice. In getting on their high horse they fell off the judgment seat. I do not deny that it is thoroughly unpleasant and uncomfortable to be accused of bias. It is, sadly, not an uncommon charge. It is, on the contrary, a worryingly increasing challenge to the court's authority at all levels. Judges, member of Tribunals, magistrates, all have to rise above such a challenge because all must be confident in their ability to judge impartially.
- I agree, therefore, that the Tribunal was quite wrong to march in and announce their withdrawal without giving the parties any opportunity to respond. I agree with the Employment Appeal Tribunal's observations reinforced by Sedley L.J. that:-
- The further alternative was always open to them simply to continue whether or not with a further adjournment to allow equanimity to be restored. I am quite satisfied they ought not to have reacted as they did.
- That said, could they properly have continued to hear this case having decided in the seclusion of their retiring room that they were incapable of hearing it impartially? To that question there is inevitably only one answer. They could not possibly have continued. They were honest enough to admit that they had lost their impartiality. From that moment onwards they were infected with actual bias. To have continued would have been to deny justice being done.
- In my judgment the order they made that the hearing of the matter by the Tribunal be discontinued and that it be reheard before a differently constituted Tribunal subject to such other directions as may be made by the regional chairman was, in the unhappy circumstances, the right order. That it was made for the wrong reasons does not matter. The appeal lies against the order not against the reasons for it. The appeal against the order made by the Lamb Tribunal should, in my judgment, have been dismissed.
- The regional chairman directed that the matter be listed for hearing to determine whether or not the originating application should be struck out under the power conferred by Rule 13(2)(e) of the Industrial Tribunal Rules of Procedure 1993 on the grounds that the manner in which the proceedings had been conducted by or on behalf of the applicant had been scandalous, frivolous and/or vexatious. Although that decision has come under attack from Mr Sykes, there was no appeal against it and so the decision stands. I am quite satisfied it was within his power to make it. I am less satisfied that he was right to do so. It does not now matter.
- The issue was determined by the Warren Tribunal who struck out the originating application. That order was appealed to the Employment Appeal Tribunal but they decided the matter for themselves and had, therefore, to dismiss the appeal against the Warren Tribunal decision. Were the Employment Appeal Tribunal right to do so?
- In my judgment the Employment Appeal Tribunal were wrong for two reasons. The first is, as I have explained, they ought to have dismissed the appeal against the Lamb Tribunal decision. The second is, for reasons explained by Sedley L.J., with which I agree, they were not, in any event, entitled to substitute their own decision to strike out. In my judgment, the determinative question is not whether or not the Warren Tribunal were correct to strike out the originating application as they did.
- The Warren Tribunal were in an impossible position. They had to do their best to deal with the application in the way it came before them in the judgment of the Employment Appeal Tribunal, my Lords and me; the matter should never have got to them at all had the Lamb Tribunal not over-reacted and had it taken the alternative steps that were open to it. The problem created for the Warren Tribunal was that the Warren Tribunal had to decide the matter without being able to know what would have happened if things had been done properly. Who knows what would have happened? Before the Warren Tribunal Mr Harry complained that the Lamb Tribunal had reached the decision they did without first warning him that any repetition of the conduct which offended them might well result in their taking the action which eventually they did. He said he had not intended to imply bias. He said he had been upset by the refusal to grant the adjournment. One cannot but wonder whether a few soothing words from Mr Lamb would not have defused this explosive moment in a way which would have allowed Mr Harry to pull himself together, and behave with sufficient decorum to allow the hearing to continue.
- Sharply defined the question for the Warren Tribunal was, as they posed it, whether or not "the manner in which these proceedings had been conducted by and on behalf of the applicant has been scandalous, frivolous and/or vexatious".
- There was no express finding by the Warren Tribunal of frivolous or vexatious conduct. The Employment Appeal Tribunal found that his conduct was scandalous and "coming on top of his repeated applications for an adjournment ... also vexatious." In my judgment they were wrong to find that this conduct was vexatious. The fact that he was making an application for an adjournment for the third time on the same grounds was certainly irritating but for my part I would not be able to conclude that it was vexatious within the meaning these words have. It may have been totally misconceived but I doubt if it was done purely to cause annoyance so as to amount to an abuse of process.
- The Warren Tribunal found:-
- The Employment Appeal Tribunal in its view of the matter said:-
- The first question is to understand what is meant by "scandalous". The best, indeed only, definition I have chanced upon was that given by Daniel, the great master of and author of the seminal work Chancery Practice. He is recorded in Byrne's Dictionary of English Law, 1923, as having said with reference to pleading that:-
- In my judgment Mr Harry's tirade on the morning of 28th January when he accused the Tribunal of racial bias was scandalous conduct. That incident must, however, be viewed in isolation. There was nothing scandalous about his two previous applications to adjourn and whatever degree of incompetence he showed in the management of the case on the applicant's behalf, there is no hint or suggestion of anything scandalous in the way he had represented her until that moment. In aggregating what happened on the two earlier applications for adjournment with what happened on the morning of 28th January, both the Warren Tribunal and the Employment Appeal Tribunal were, in my judgment, in error.
- To say, however, that he behaved scandalously on that one occasion does not of itself answer whether "the manner in which the proceedings had been conducted by or on behalf of the applicant", the words of Regulation 13(2)(e), was scandalous. That answer depends upon how the proceedings had been conducted viewed overall as well as what effect isolated conduct might have on the future conduct of the proceedings. This offensive outburst came on the 12th day of the hearing. There is, so far as we know, nothing untoward about the previous 11 days although there may be good reason to believe Mr Harry's lack of expertise may have contributed to the length these proceedings had taken. The point is that there was nothing worthy of complaint of a serious nature. In the light of the criticisms we have all made of the Lamb Tribunal, the tainting effect of this isolated incident could, and should with tact, have been dissolved so that it would not have coloured the proceedings as a whole. For my part I cannot conclude that the proceedings had been conducted in a scandalous manner.
- I agree with my Lord's view that the striking out of the proceedings had to be a proportionate response. Striking out was disproportionate to the necessary metaphorical shrugging of the shoulders and getting on with it in order not to jeopardise the applicant's claim and ten days of the hearing.
- I end where I began. This is a deeply unsatisfactory result. I am acutely conscious that to order a rehearing may cause considerable difficulties for the local authority whose witnesses are not all available. In balancing the injustice to them against the injustice to the appellant I come down in the appellant's favour because in the sad events which have happened, she will not have had a fair trial of her complaint. I agree with my Lord that the authorities might care to review what measures if any be given to Tribunals to be able to exercise some discipline over those who appear before them. The value of having lay representatives is undoubted but the right of audience is predicated upon proper behaviour and Mr Harry's conduct fell well below the minimum standard that could be expected. It gives me no satisfaction to agree, albeit for some slightly different reasons, that the appeal should be allowed and the matter remitted to another Tribunal for rehearing.
- Order: Appeal allowed and Respondent's cross-appeal dismissed; originating applications to be remitted to the employment Tribunal to be heard before a freshly constituted tribunal; the Respondent to pay the appellant's costs of appeal and cross-appeal agreed at £858.63.
- (Order does not form part of approved judgment)
Lord Justice Sedley:
a) Events
"If I were a white barrister I would not be treated in this way."
"If I were an Oxford-educated white barrister with a plummy voice I would not be put in this position."
"9. Mr Harry admitted using the words and expressions about which the Lamb Tribunal complained and based its decision. Mr Harry attempts to excuse his conduct by saying that there was no formal allegation of racial bias. He says he did not formally indicate to the Tribunal that he felt his treatment by them was unfair and discriminatory. He complains that the Tribunal reached the decision they did without first warning Mr Harry that any repetition of the conduct which offended them might well result in them taking the action which eventually they did. Mr Harry said that he had not intended to imply bias on the part of the Lamb Tribunal. Mr Harry says that when he referred in the Lamb Tribunal to a white Barrister, Oxford educated with a "plumy voice" he was being flippant. He told us that he had been upset that the Lamb Tribunal had not granted his applications for adjournment."
"37 Secondly, ought the applicant herself to be fixed with her representative's conduct in her absence? She plainly gave him express instructions to persist in his applications for an adjournment, as appears from the history set out in the Lamb tribunal's reasons. So far as his remarks of less favourable treatment on racial grounds are concerned, we first accept Mr. Burns' submission that the structure of rule 13(2)(e) plainly envisages that a case may be struck out where the conduct of proceedings on behalf of a party is scandalous or vexatious. We think that it is sufficient that the party has instructed the representative to conduct the case on her behalf. However secondly, on the particular facts of this case, we are entitled to take into account the contents of an affidavit sworn by the applicant in these appeal proceedings on 11 March 1998, a time when she was represented not by Mr Harry but by solicitors. We think the flavour is caught by these extracts from paragraphs 8 9 of that affidavit:
"I can only sum up that I felt that the tribunal both LAMB and WARREN were abusing their power and authority. They were very bulling (sic) to my representative and very polite to the White Respondent Counsel Mr. Burns.
I am fortified that the Chairman LAMB and WARREN were biased and acted improperly. I do not believe that they are fit and proper persons to be Chairmen presiding in cases involving race and sex Discrimination which requires inter alia 'trust, honesty, integrity and fairly in dispensing with justice' (sic).
38. It is clear to us from that evidence, which we shall not permit Mr Sykes to "withdraw" as he asked us to do, that the applicant herself wholeheartedly endorsed and ratified the remarks made by Mr Harry to the Lamb tribunal."
(2) A tribunal may
(e) subject to paragraph (3), at any stage of the proceedings, order to be struck out any originating application on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant has been scandalous, frivolous or vexatious;
.
(3) Before making an order under sub-paragraph (e) of paragraph (2) the tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made; but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made.
For the purpose of disposing of an appeal, the Appeal Tribunal may
(a) exercise any of the powers of the body or officer from whom the appeal was brought, or
(b) remit the case to that body or officer.
Issues
i) Ought the Lamb tribunal to have recused itself when it did, or should it have afforded Mr Harry an opportunity to explain or withdraw his remarks?ii) Did Mr Harry's behaviour amount to a scandalous manner of conducting the applicant's case?
iii) If so, was striking out a proportionate response to it?
iv) If so, was it within the EAT's powers to strike the claims out unless it was a foregone conclusion that the Lamb tribunal, properly directed, would have done so?
Discussion
A. Ought the Lamb tribunal to have recused itself?
"The reasonableness of the apprehension [of bias] must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial."
B. Was the case conducted in a scandalous manner?
"In this case the admitted conduct of Mr Harry was repeated and continued over a period of time, and was in our view on any objective view quite scandalous. This tribunal, understandably in our view, were profoundly offended by the remarks which were made and felt that they were no longer able to carry out their function judicially. The Tribunal must be the judge of its own bias."
Instead we are looking at conduct which was certainly improper but which was reversible and did not therefore have as its implicit consequence the aborting of the entire proceedings. This, I think, was recognised by the EAT and is the reason why it turned to the exercise of its own powers, which I will come to under (d) below.
C. Was striking out a proportionate response?
D. Can the EAT substitute its own decision to strike out?
"The Employment Appeal Tribunal can correct errors of law and substitute its own decision in so far as the Industrial Tribunal must, but for the error of law, have reached such a decision. But if it is an open question how the Industrial Tribunal would have decided the matter if it had directed itself correctly, the Appeal Tribunal can only remit the case for further consideration."
Although there is no reference in Morgan to the statutory power of substitution by the appeal tribunal (despite the potentially embarrassing fact that, as I see from the report, it was argued by Mr Patrick Elias QC, as he then was, and myself), the report of O'Kelly (which I see was argued by Mr Alexander Irvine QC, as he then was, and myself) shows that the passage of the Master of the Rolls' judgment cited by Balcombe LJ was followed by a reference to paragraph 21 of Sch.11 to the 1978 Act and by this comment on it:
" I do not read that paragraph as doing more than authorising the appeal tribunal to record a decision which, on the facts found, it could have directed the industrial tribunal to record."
Conclusions
Lord Justice Longmore:
Lord Justice Ward :
The Lamb Decision.
"Each member of the Tribunal considered that the allegation was so injurious and offensive that each of us felt it impossible to continue to preside over the case with the impartiality and equanimity necessary to the judicial task involved."
"... it is the duty of any judicial body to approach its task with impartiality and equanimity, not to abdicate its responsibility. Where its authority is challenged it must deal with that challenge itself."
"In the present case we have no doubt that the proper course was for the Tribunal to return from its deliberations and inform the parties of its collective view of Mr Harry's remarks. Before discontinuing the proceedings it ought to have required Mr Harry to affirm or withdraw his accusations. If he continued to press his claim of racial bias it would then be for the Tribunal, either of its own motion or, more likely, on the basis of an application which was in fact made by the respondent after discontinuance had been ordered and thus not entertained by the Lamb Tribunal, to consider using its powers to order a strike out under Rule 13(2)(e) (there being no power in the Tribunal to punish a party or a representative for contempt) and to give appropriate directions for that purpose. Alternatively if he withdrew his remarks, it would then have been open to the Tribunal to continue the hearing, with or without an adjournment occasioned by the absence of the applicant."
The Warren Tribunal's decision.
"In this case the admitted conduct of Mr Harry was repeated and continued over a period of time, and was in our view on any objective view, quite scandalous. The words which Mr Harry used were clearly intended to indicate to the Tribunal that Mr Harry had formed the view that the decisions which the Tribunal made were biased and influenced by the applicant's and his race, they were discriminatory."
"In our view Mr Harry, in making an unwarranted charge of racial bias was thereby attempting to interfere with the due administration of justice. Indeed, he effectively succeeded, since the Lamb Tribunal then rose to the bait and ordered discontinuance with the prejudice which that course may cause to the respondent. We find that his conduct was scandalous ..."
"Scandalous consists in the allegation of anything which is unbecoming the dignity of the court to know, or is contrary to good manners, or which charges some person with a crime not necessary to be shown in the cause: to which may be added that any unnecessary allegation, bearing cruelly upon the moral character of an individual, is also scandalous."
Conclusion.