England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE McMULLEN QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th March 2007

Lord Justice Rix:

1. This is a renewed application for permission to appeal in respect of two orders given by HHJ McMullen QC on 24 January 2007 sitting alone in the Employment Appeal Tribunal ("EAT") in relation to Mr Edem's claim against Ajilon UK Limited ("the first respondent") and Fujitsu Services Limited ("the second respondent").
2. Mr Edem's claim in the Employment Tribunal has a somewhat complex procedural history which I will seek briefly to explain, but the bottom line is that what HHJ McMullen was considering at the hearing, which gave rise to these two orders which are before me today on these applications, was how to case manage very detailed appeals to the EAT on interlocutory case management orders or decisions which had previously been made in this litigation, all against the background that one week before 24 January, namely on 17 January 2007, there had been a pre-hearing review in the Employment Tribunal at Reading before Mrs Hill, sitting alone, at which she had considered more fundamentally applications by the two respondents to strike out the whole of Mr Edem's claims. She did on that day, 17 January, in fact, strike out Mr Edem's claims against both respondents, both on the grounds of their having no reasonable prospects and also on the separate ground that Mr Edem had been conducting his litigation in a way which was vexatious and an abuse of process.
3. On 24 January Judge McMullen had heard about the hearing of the pre-hearing review but he did not have before him the judgment which was to be given upon that review. That judgment came forward, I think, on 31 January 2007. He was therefore concerned that he should do nothing in relation to the interlocutory matters which were before him on 24 January, if the truth of the matter was that the whole substance of Mr Edem's claim had failed or was going to fail.
4. What was before him was a Rule 3(10) hearing arising out of a previous decision of HHJ Peter Clark on one of the two Notices of Appeal which Mr Edem had issued relating to 30 November 2006, under which HHJ Peter Clark had ruled that there was no reasonable ground for saying that there was any error of law to go before the EAT. A second Notice of Appeal, which had been issued only the week before on 17 January 2007, covering the same decisions as were under appeal on the first Notice of Appeal, that of 30 November 2006, was also before HHJ McMullen. That had not gone through the paper procedure as yet of considering whether there was any reasonable ground for saying that there was an error of law fit to go before the EAT.
5. Speaking for myself, and not necessarily being master of all the detail of these two Notices of Appeal, I am not certain what the second Notice of Appeal adds to the first Notice of Appeal. Mr Edem, in his submissions this morning, assures me that his second Notice of Appeal does take matters further because he says it deals with matters after 30 November 2006. I am not sure about that because it seems to me that the decisions from which appeal is sought relate back to before 30 November 2006. However, be that as it may, the matter will come out in the wash.
6. Now what HHJ McMullen was concerned about was that he would go forward with hearing a Rule 3(10) application in respect of at any rate one of those two Notices of Appeal at a time when in effect the litigation was all over. So what he decided to do was to adjourn the two Notices of Appeal which were before him that day for 42 days from the promulgation of the Employment Tribunal's written reasons in relation to the pre-hearing review that had been held the previous week on 17 January. He did that, I am confident, in order to see what emerged. He fixed 42 days as the period of the stay from the promulgation of the Employment Tribunal's written reasons for the very reason that 42 days was the period allowed to Mr Edem for him to appeal from any lack of success at that pre-hearing review. Mr Edem in his submissions today expressed concern as to why there had been a stay for that period of 42 days when the rules, he tells me -- I have not checked for myself -- refer to a stay of up to a period of 21 days. But the reason for the 42 days, I am confident and I have been able to reassure Mr Edem, was for the very reason that that was the period allowed to him for an appeal from the pre-hearing review decision. So that was for Mr Edem's benefit; it was also for the benefit of sensible case management in this case. After all if the pre-hearing review ended up in the striking out of all Mr Edem's claims, and if there was no appeal from that decision, then there would be nothing for Mr Edem's interlocutory Notices of Appeal which were before HHJ McMullen to bite on. As it is, Mr Edem has appealed the strike-out decision. In any event, it would be an undesirable way of proceeding for there to be any consideration of those interlocutory appeals separate from the substantive matters dealt with in the pre-hearing review.
7. There must be doubt, reflected in previous decisions in this litigation of Burton J at an earlier stage and HHJ Peter Clark, as to whether Mr Edem will be able or would be able in any event to show any error of law fit to go before the EAT arising out of purely interlocutory decisions. But in any event the EAT would want to consider, if there was perchance any strength in these interlocutory appeals, whether and to what possible extent they might have any bearing whatsoever upon the more substantive matter of an appeal from the strike-out in the pre-hearing review. It was for these reasons, I have no doubt myself, that it is plain from HHJ McMullen's two orders that he wanted these matters to come back to him for further consideration, initially on the papers, as he says in paragraph 3 of his first order in fact under the reference 1600/06, for him to consider how the matter should best proceed. That he had in mind that at the end of the day if there was a strike out and an appeal from a strike out these matters should all be considered together by the same judge, is plain to me from the language of his second order of 24 January, under the heading 0096/07, where he said this:

"It is ordered that this matter be stayed to be restored for consideration by HHJ McMullen QC at the same time as the Rule 3(10) application in PA/1600/06/DM and any appeal in relation to the Employment Tribunal Pre Hearing Review on the 17^th day of January 2007."

8. So to revert to the four paragraphs of the order made by HHJ McMullen in his first order, the first paragraph deals with the stay to which I have made mentioned. Mr Edem has accepted from me that the 42-day period of adjournment was out of consideration for his rights of appeal from the pre-hearing review decision and in the light of that makes no further complaint about paragraph 1. For similar reasons he accepts the order made in paragraph 2 that any appeal from the pre-hearing review decision will be referred to HHJ McMullen, together with any consideration arising out of his order made that day in relation to interlocutory matters. Mr Edem's main concern as things have turned out this morning has been with reference to paragraph 3 of the order. This reads as follows:

"This Rule 3(10) application will be restored to HHJ McMullen QC for further consideration and determination on the papers upon the expiry of the time limit set out in paragraph 1 above."

9. Mr Edem was concerned that the reference in that paragraph to "on the papers" meant that HHJ McMullen was depriving him of an oral Rule 3(10) hearing. In my judgment, however, that was not what HHJ McMullen was saying. HHJ McMullen was, in stating this paragraph, in my judgment simply concerned with a sensible way forward at the expiry of the time of the adjournment and stay. If after all there had been a strike out and no appeal from the strike-out, then there would have been nothing necessary to consider at a Rule 3(10) hearing and that application could efficiently be dealt with on the papers, as Mr Edem himself accepts to me on that hypothesis. In any event it would be necessary to give directions as to how the 3(10) application and any appeal from the strike-out decision, which itself may lead in due course to a consideration on the papers and perhaps ultimately to a Rule 3(10) consideration itself, were to be case managed together with the further interlocutory appeal dealt with under HHJ McMullen's second order. That, it seems to me, is all that lies behind the case management direction of paragraph 3 of that order.
10. So I am confident that Mr Edem will have the opportunity to make his case at an oral hearing on the merits of his various applications. As for those merits, they are not before me and I will therefore confine myself simply to saying that so far as the interlocutory Notices of Appeal are concerned, Mr Edem may do well to recognise that he needs to show an error of law, which may prove difficult in relation to what are interlocutory case management decisions. Nevertheless, I recognise that one ground of appeal buried amongst many others in his interlocutory Notices of Appeal is complaint about the conduct of the Employment Tribunal.
11. So all those matters lie in the future. It seems to me that I have said enough to have made it plain, as Mr Edem has fairly and frankly accepted before me this morning during argument, that there would no proper basis upon which I should give permission to appeal on the renewed Notices of Appeal to this court which are before me this morning in respect of what are nothing more than sensible case management directions of HHJ McMullen in a complex situation.
12. For these reasons I refuse these two applications. It seems to me that it is unnecessary for me to go further into the complex background to this litigation.

Order: Applications refused.