England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Lindsay: President)

		Royal Courts of Justice Strand London WC2 Monday, 20th May 2002

Monday, 20th May 2002

1. LORD JUSTICE LONGMORE: Mr Crook is the applicant for permission to appeal before me today. He was originally employed as a Station Energy Manager at RAF Lyneham from February 1989 until he was dismissed in 1999. On 6th September 1999 Mr Crook made a complaint and issued what is referred to as an IT1 in respect of what he claimed to be harassment, and he gave some particulars of favouritism and victimisation on the part of a particular Group Captain. On 12th October a response to the allegations was made by the Ministry of Defence, stating that there was no statutory basis for the claim and that, in any event, the Ministry of Defence was the proper respondent to any such claim. On 9th December 1999 Mr Crook then issued a second complaint (a second IT1, as it could be called), claiming that he had been unfairly dismissed on the basis that he had made, as he called them, "protected disclosures" and that that was the ground for his dismissal, but that since they were protected under the terms of the Public Interest Disclosure Act 1998, the dismissal was, therefore, unfair.
2. On 10th December 1999 there was an order for disclosure of documents, and a second order was made on 14th January 2000. The Ministry of Defence, through the Treasury Solicitor, did in fact disclose a number of documents on 19th January 2000, and on 20th January they issued an IT3 in relation to Mr Crook's second IT1. There was then a hearing relating to certain interim relief sought by Mr Crook, which was heard by the Employment Tribunal on 27th January 2000. That application was refused. Various applications for permission to appeal were made in respect of some of those claims to interim relief, and some were pursued as far as this court and were dismissed by Peter Gibson LJ on 4th October 2000.
3. Meanwhile, the case had been proceeding. The two IT1s were joined together and an interlocutory hearing was called for, and held on 13th March 2000, to deal with a number of issues relating to Mr Crook's claims. One of the issues which fell to be addressed was whether the claims should be struck out as being conducted scandalously, frivolously or vexatiously. The Tribunal has such a power under Regulation 13 of the Rules of Procedure, which are set out at Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993. That power is central to the application before me this morning. The reason why the Tribunal thought that it might be appropriate to exercise that power was that Mr Crook had, according to the Tribunal, been inundating the Tribunal with a large number of documents, so large, indeed, that it was impossible for the case to be heard.
4. What happened was that on 6th January 2000 the Secretary to the Tribunal sent a letter to Mr Crook in these terms:

"I am directed to inform you that we wish to make it clear that you should write to the tribunal informing us of the steps you take in the action, but only where you are applying for some kind of order from the tribunal. The tribunal is not in a position to process the volume of letters you send and if it does not diminish, further action will be taken."

5. On 19th January 2000 he was sent a further letter from the Secretary to the Tribunal which stated as follows:

"... since January 2000 you have sent to the Tribunal some 24 separate letters. That is not a reasonable way to conduct proceedings and you should limit your correspondence to what is strictly necessary..."

6. The flow of letters continued, and on 16th February the Tribunal decided of its own motion to list the case before an interlocutory hearing to deal with the manner in which the proceedings were being conducted, and also other things, such as discovery if the case were to continue. The hearing on that date took place in front of a full panel of three members, who unanimously found that the claims should be struck out as a result of the way in which Mr Crook had been conducting his claims. That decision was given orally on that day, Extended Reasons being sent to the parties on 24th March.
7. That decision was not itself the subject of an appeal within the relevant time limit; but on 15th March Mr Crook sought a review of the decision to strike out the case, stating that the decision to strike out was wrong. He then reapplied, having seen the Extended Reasons, and on 5th April 2000 he issued a notice of appeal in both cases relating to the failure on the part of the Employment Tribunal to review their decision. At that stage he had not in fact been informed that his request for a review had been refused, but it was in fact refused on 2nd May 2000.
8. The Employment Appeal Tribunal, whose powers of course are confined to detecting errors of law on the part of the Employment Tribunal, then held a directions hearing at which Lindsay J decided that the appeal as to the failure on the part of the Employment Tribunal to review that earlier decision should be dealt with at a full hearing.
9. On 6th December 2001 it was dealt with at a full hearing in front of the Employment Appeal Tribunal including Lindsay J, Mr Singh and Mrs Matthias. The appeal was dismissed and the decision of the Chairman of the Employment Tribunal not to review the earlier decision of March 2000, whereby Mr Crook's claims were struck out, was upheld.
10. Mr Crook now seeks permission to appeal to this court on two main grounds. He complains that his claims have been struck out before they have been heard and, if and insofar as Regulation 13(2)(e) might justify that procedure, he claims that it is incompatible with the Human Rights Act. He also complains - and this is his second ground - that the Employment Appeal Tribunal refused to make an order for disclosure, as he had been asking the Employment Tribunal to do.
11. As far as those two grounds of appeal are concerned, the first is by far the most important, because the second (with which I will deal now) really depends on the first, as Mr Crook explained to me. The refusal on the part of the Employment Appeal Tribunal to make an order for disclosure is not the subject matter of a particular order of the Employment Appeal Tribunal, because they upheld the decision of the Employment Tribunal not to review their earlier decision that Mr Crook's claims be struck out. On that basis it became irrelevant, both from the point of view of the Employment Tribunal and Employment Appeal Tribunal, whether to make any orders for disclosure, because once they had decided, rightly or wrongly, that the claim should be struck out, there was no room for making any further orders.
12. I come back to the first ground on which Mr Crook seeks permission to appeal. As I have said, the Employment Appeal Tribunal can only interfere on a point of law, and indeed this court can only interfere with a decision of the Employment Appeal Tribunal on a point of law.
13. Mr Crook raises the point, as I have indicated, that Regulation 13(2)(e) is incompatible with the Human Rights Act. The great difficulty with that submission is that the decision of the Employment Tribunal was originally made in March 2000, and the decision not to review that decision was made in May 2000, which is before the Human Rights Act came into effect on 2nd October 2000. The Employment Appeal Tribunal could only have considered that argument if it were a point of law on which the Employment Tribunal could itself have been in error. But since they made their decisions before the statute came into effect, it is impossible to say that there was any error on the part of the Employment Tribunal in proceeding in accordance with Regulation 13(2)(e). That suffices for the purpose of saying that any appeal on this ground to this court would have no prospect of success.
14. Mr Crook submits that the Employment Appeal Tribunal decision was itself after the Act had come into force. That is true. But it cannot avail him, because the Employment Appeal Tribunal can only proceed on the basis of errors of law on the part of the Employment Tribunal.
15. Nevertheless, since Mr Crook has made the argument, I do wish to say just a little bit about it, because I can see that he would be disappointed to have his application refused on the grounds that the Act had come into force. But it does seems to me that even if the Act were to have come into force, any argument that Regulation 13(2)(e) was incompatible with the Human Rights Act has no prospect of success either. I say that because every court must have power to control its own procedure; and, if a claimant does indeed inundate a tribunal with so much paper that it makes it impossible for the Tribunal to do justice, that power may, on rare occasions, have to be exercised.
16. All litigation has to be conducted with the proper awareness of the duty of a tribunal. Litigants should only send to the Tribunal what it is reasonable to expect the Tribunal to read, and they must await a response before sending yet further paper to the Tribunal. The Tribunal members and their Chairmen cannot be expected to sit up all night reading repetitive material. There comes a time when, in the interests not only of the particular claimant but also in the interests of other claimants who may have genuine claims that need to be disposed of, that the only way to deal with a claim is to strike it out.
17. The Employment Tribunal itself clearly gave anxious consideration to that. There was no appeal from that decision as such. There was an application to review that decision, and that refusal to review was appealed. That was dealt with in a comprehensive judgment on the part of the Employment Appeal Tribunal, and it is impossible to see any error of law in that. This application is refused.
Order: Application refused.