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 THE ORDER OF THE
EMPLOYMENT APPEAL TRIBUNAL

		A1/2002/2487 Royal Courts of Justice Strand London, WC2
		19 March 2004

1. LORD JUSTICE POTTER: This is an application for permission to appeal .....
2. THE APPLICANT: You can kid yourself all you like. I am so fed up of this system that lets the tax payer down and lets individual people like me down all the time. It is not fair. I have to go through this again, go to the European Court and they say the judicial system is not fair because of people like that that sit there, won't listen.
3. LORD JUSTICE POTTER: I think you should listen to my judgment. If you do not want to listen to my judgment you can leave court. I will make sure that there is a transcript you can have.
4. THE APPLICANT: Of course.
5. LORD JUSTICE POTTER: But I think it would be better if you sat and listened.
6. This is an application for permission to appeal .....
7. THE APPLICANT: I can't believe it.
8. LORD JUSTICE POTTER: ..... against an order dated 7 .....
9. THE APPLICANT: This I cannot do. Why does he insist on that? He doesn't know me? He doesn't know me? My doctor - - does not know. How dare him? How dare .....
10. LORD JUSTICE POTTER: Miss Obasa, I cannot give judgment if you are going to talk while I do it.
11. THE APPLICANT: What judgment? He call it judgment?
12. LORD JUSTICE POTTER: If you wish to go further to the European Court you will require a judgment from which to appeal. That is what I am about to give you.
13. THE APPLICANT: I will do, but it is not fair. How can you sleep at night?
14. LORD JUSTICE POTTER: Would you allow me to give the judgment now, or I must ask you to leave while I give it.
15. THE APPLICANT: How can you sleep at night?
16. LORD JUSTICE POTTER: I am not here to answer your questions. I am here to deal with the matter.
17. THE APPLICANT: How can you take money off people while you sit there doing what you should not be doing? There is a level of discretion in decision making. Just sit there and do that. It is not fair. I am still at work, not able to function properly. It is just not fair. It is almost like .....
18. LORD JUSTICE POTTER: Miss Obasa, I must ask you, are you going to let me give this judgment without talking while I do it? If not, I must ask you to go outside court so I can do it.
19. THE APPLICANT: I cannot stop him, can I? It is the only power he gets. It is not the first time he has done it. Carry on what you do best.
20. LORD JUSTICE POTTER: This is an application for permission to appeal against an order dated 17 September 2003 of an Employment Appeal Tribunal chaired by His Honour Judge Levy QC. The order dismissed an appeal against the decision of the Employment Tribunal promulgated on 18 October 2001.
21. The grounds of appeal complain that the appellant did not receive a fair hearing because of the Employment Appeal Tribunal's refusal to adjourn the hearing at her request on the grounds that she lacked representation and the documents necessary to present her appeal.
22. A brief summary of the facts may be gleaned from paragraphs 5 to 6 of the judgment of the Employment Appeal Tribunal panel, chaired by Mr Recorder Langstaff QC, on a preliminary hearing of the appeal.
23. Miss Obasa commenced employment with Northamptonshire County Council in 1998. She is of African origin, and suffers from sickle cell disease which causes intermittent pain and can result in the sufferer being weak and tired. In addition, it caused Miss Obasa to suffer from kidney abnormalities. She was also diagnosed as having dyslexia.
24. Miss Obasa brought a number of claims against her managers at work and directly against the employer based on allegations that they had discriminated against her on the grounds of race and disability. The decision of the Employment Tribunal was promulgated on 18 October 2001. It is 78 pages long. It concluded that it had no jurisdiction to hear a number of the claims as they were brought out of time, and the remaining complaints were dismissed on the merits.
25. Miss Obasa appealed against the decision. Following a preliminary hearing, Mr Recorder Langstaff QC gave judgment dismissing most of the issues in the appeal, including allegations of bias, but allowed one narrow point to proceed to a full hearing before the Employment Appeal Tribunal. The point was based on Miss Obasa's assertion before the Employment Tribunal that the council was under a duty to have in place an internal transfer policy which ensured prevention of any substantial disadvantage being placed on an individual in Miss Obasa's position. Mr Recorder Langstaff QC said that it was arguable that the Employment Tribunal had failed to consider this issue. The limited appeal was listed to be heard by the Employment Appeal Tribunal before His Honour Judge Burke QC on 2 April 2003. Counsel for Miss Obasa applied by fax in advance of the hearing for a 2 pm listing, but the application was refused. Counsel did not attend on 2 April apparently due to illness, though it appears he was in the commercial court on that day. It was therefore ordered that the hearing be adjourned until 17 June 2003.
26. On 16 June the Employment Appeal Tribunal were asked to adjourn the hearing as counsel would be unable to attend. That request was immediately refused by fax. On that date counsel for Miss Obasa, once again, failed to attend due to being at another court. I should add that he eventually arrived at 4 pm, stating that he had never been instructed to appear on 17 June but had managed to get over from Croydon where he had been appearing that day. His Honour Judge Burke QC gave judgment, adjourning the hearing and requiring that counsel and solicitor for Miss Obasa file an affidavit explaining the reasons for the absence of counsel on 2 April and 17 June. The question of costs was reserved, but it was noted by the judge that counsel and solicitor should give thought, prior to the substantive hearing, as to why an order should not be made effectively requiring one or both of them to pay the costs that had been thrown away. Thus while it appears that Miss Obasa has not been well served by those representing her, she was treated with some indulgence so far as bringing on her appeal was concerned.
27. A further hearing was held before a panel of the Employment Appeal Tribunal, presided over by His Honour Judge Levy, on 17 July 2003. Miss Obasa appeared unrepresented at this hearing and requested an adjournment. She claimed that she had not received necessary papers from her solicitors and was unhappy with the skeleton argument which had been previously prepared by counsel on her behalf. His Honour Judge Levy recorded his considerations relating to the proposed adjournment at paragraphs 1-12 of his judgment. He held that on balance it would be wrong to adjourn the hearing. The following points were noted by the judge in coming to his decision. The matter had already been subject to a number of previous adjournments, and there had thus been a long delay. He stated that there had to be an end to litigation and this was the third time that counsel for the respondents had attended on the basis that the case was listed for hearing. Counsel for the respondents, Miss Thomas, had conducted the case throughout. She was shortly to go on maternity leave and so, on top of all the other costs already wasted, an adjournment would cause the respondents the inconvenience and costs of instructing new counsel. The judge said that the point to be considered was relatively narrow. Miss Thomas would be able to bring to the panel's attention any points that might fairly be said to support Miss Obasa's case. That was in the morning.
28. A short adjournment of some two or three hours until 2 pm was ordered during which Miss Obasa had the opportunity at least to familiarise herself with relevant papers which had been provided to her on arrival. The hearing then progressed. (I should say in parenthesis at this point that Miss Obasa said she was unable properly to exercise that opportunity because of her state of mind and because of her dyslexia. Nonetheless the hearing resumed at 2 pm).
29. The appeal was dismissed on the grounds that, looking at the Employment Tribunal's decision in the round, it was clear that the they had considered the issue of an appropriate transfer policy. That appears at paragraph 20 of the judgment. It was noted that the fact that Miss Obasa had represented herself had not played any part in that decision, which was instead made purely on the facts of the case (see paragraph 21). It is not necessary to examine the merits of the Employment Appeal Tribunal's decision in that respect because Miss Obasa's principal point is simply that she had no proper opportunity to advance her case before the Employment Appeal Tribunal. Her complaint is principally that the proceedings before the Employment appeal Tribunal were procedurally unfair and in breach of her human rights.
30. The grounds of appeal are against the refusal of the adjournment. Section 7 of Miss Obasa's proposed notice of appeal states that as a result of the refusal she was unable properly to present her case and it is stated in terms that this amounted to an abuse of her human rights. Her skeleton argument expands these grounds and may be summarised as follows. First, she was under the impression that the counsel and solicitor who had previously represented her would be at the hearing pursuant to the order of His Honour Judge Burke so as to provide an explanation for their previous non-attendance. Second, she was not given the opportunity to see the transcript of the judgment of His Honour Judge Burke of 17 June 2003. Third, at the hearing on 17 July she had to make her case with no representation and no satisfactory skeleton argument. Finally, Judge Levy erred in relying on counsel for the respondent to put forward both sides of the argument.
31. Judge Levy dealt with Miss Obasa's complaint that she had not seen a transcript of the judgment of His Honour Judge Burke by indicating that the judgment was not material to the merits of the appeal (see paragraph 9 of the judgment). That was plainly correct. The judgment of Judge Burke had dealt solely with the procedural difficulties encountered due to the repeated non-attendance of counsel for Miss Obasa. It did not illuminate the point on which he had granted leave to appeal which he dealt with quite shortly.
32. So far as the decision to refuse an adjournment was concerned, it was plainly a discretionary one for the Employment Appeal Tribunal. The role of an appellate court in reviewing a discretionary matter was addressed by the House of Lords in Hadmore Productions v Hamilton [1983] 1 AC 191. It is not necessary to set out the grounds for reviewing an exercise of discretion as described in that case. The relevant ground is that the exercise of the discretion was so abhorrent that it must be set aside on the ground that no reasonable judge, regardful of his duty to act fairly and judicially, could have reached it. It was noted in the Hadmore case that the fact that the appellate court may have chosen to exercise its discretion in a different manner to the judge was not in itself enough to justify overturning the decision. The Employment Appeal Tribunal has a general power to give case management directions. Directions must be consistent with the overriding objective such that "the case can be dealt with quicker or better considered in the most effective and just way" (see Practice Direction 9 (1)).
33. In this case I do not consider that there is a basis upon which the Court of Appeal would be persuaded that refusal of an adjournment beyond 2 pm was not just in all the circumstances or one to which Judge Levy could properly come.
34. So far as the breach of the applicant's human rights are concerned, Article 6.1 of the European Convention on Human Rights is relevant. The issue under Article 6.1 is whether the refusal to grant an adjournment had such an effect as to deny Miss Obasa effective access to the court or, in this case, the Tribunal. The European Court of Human Rights' decision in Airey v Ireland [1979] 2 EHRR 305 indicated that the correct test for whether or not a litigant in person had effective access to the courts was whether the individual would be able to present his or her case properly and satisfactorily. In X v United Kingdom [1984] 6 EHRR 136 the Commission summarised this principle as indicating that Article 6.1 would only be breached "in exceptional circumstances, namely where the withholding of legal aid would make the assertion of a civil claim practically impossible or where it would lead to an obvious unfairness of the proceedings". The issue was recently considered by the European Court of Human Rights in McVicar v United Kingdom [2002] 25 EHRR 22. In that case it was held that whether or not an individual is able properly and satisfactorily to present his or her case will depend upon the specific circumstances at hand.
35. In this case, albeit Miss Obasa was dyslexic, she was familiar with her own case. The point of law appears to have been quite narrow and straightforward. It depended simply on examination of the Employment Tribunal's decision in respect of one narrow question: had or had not the Employment Tribunal taken into account the single point on which permission to appeal was given? The Employment Appeal Tribunal accepted that the Employment Tribunal did not mention it expressly in the relevant parts of its decision, but inferred that nonetheless it must have considered the matter. It is difficult to see that the presence or argument of counsel could have altered the view of the Employment Appeal Tribunal. There were no onerous procedural requirements placed on Miss Obasa by the Employment Appeal Tribunal. It is clear that His Honour Judge Levy was anxious to assist her presentation as much as possible if the matter had to proceed, as he judged that it did. He stated in his judgment that Miss Obasa "effectively made points which she wanted to make". It is also stated in his reasons for his decision at paragraph (b):

"The appellant presented her appeal very confidently but it was the view of the whole tribunal that the decision below properly set out the reasons for the failure of her case and we discern no grounds on which the appeal could be allowed."

36. I have been much pressed on this application by Miss Obasa on the difficulties which she faced. I am bound to say that, while at several stages she insisted before me that she was not capable of properly assimilating or arguing her case, she was in fact vigorous and articulate in placing her case on unfairness before me. This was a case, as it came before His Honour Judge Levy, which cried out for an end to the litigation. The point was straightforward. The applicant was given ample access to the court in circumstances where the defence was quite blameless in respect of the delays and adjournments which had taken place. Whatever she may say now she was plainly capable of puting her case. That was a matter to which the judge was entitled to have regard and to which he did have regard when deciding that the matter must proceed.
37. In my view no breach of Miss Obasa's right to a fair trial is demonstrable in this case and this application for permission to appeal must be refused.
38. Miss Obasa, you would probably like a copy of a transcript of my decision which I have the power to order should be supplied to you at public expense. Would you like that?
39. THE APPLICANT: Yes.
40. LORD JUSTICE POTTER: Very well. I will do that.

Order: Application refused, with a copy of transcript of this judgment to be supplied to the applicant at public expense.