England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th October 2010

Lord Justice Pill:

1. This is an application for permission to appeal by Dr Anna Caitlin Evans. She seeks to appeal against a decision by HHJ McMullen QC of the Employment Appeal Tribunal. The case has been listed as not before 11.00. It is now 11.20. I have been supplied with an email which the applicant has sent to the court.
2. I first refer to an earlier one which reached me yesterday morning and that is signed by Dr Evans as a litigant in person. She refers to the difficulty with her internet connection, and to the decision in a different case, which she has received, which has distressed her extremely. Dr Evans then says:

"For these reasons, and unless the court is able to make the necessary arrangement, I request that the Court of Appeal either adjourn the hearing date until I can liaise for suitable 'remote' facilities, or that I be exempted from attending the hearing listed for 12 October."

3. In reply, at the request of the office, I stated:

"I have received this morning Dr Evans' message of 8^th October 2010 at 16.55 [Friday afternoon]. I am certainly prepared to grant the exemption from attending as requested. If Dr Evans is not present, I propose to deal with the application on the basis of written submissions. I am not prepared to adjourn."

4. This morning an email, timed 10.29, refers to the continued difficulty with internet access and continues:

"I regret I will not be able to attend in person today but would be grateful if Lord Justice Pill could consider the skeleton arguments I'd submitted, and other documentation filed."

5. I propose to do that. I should add that in her email Dr Evans has added:

"The accidental death of an employee of the Respondent has been recently reported in the news, and I wish to also express my regret and concern about that."

That is clearly a generous and kind statement for her to make.

6. The EAT was hearing an application concerning an appeal against the decision of its registrar not to extend time under Rule 3.10 of the EAT Rules 1993. Before hearing the application HHJ McMullen wrote to the applicant informing her he was an alumni of the respondent, the University of Oxford. By looking at Who's Who I find that HHJ McMullen was at Brasenose College about forty years ago.
7. The applicant objected to HHJ McMullen hearing the appeal by letters of 16 April 2010 and 19 April. He declined to recuse himself following a hearing. He dismissed the applicant's appeal on 23 April. Dr Evans seeks permission to appeal against those decisions on the ground of actual or apparent bias. As an alumni of Oxford University, the judge is a part of the University and acted as a judge in his own cause, she submits.
8. I need to mention other proceedings because Dr Evans also seeks to review a decision of Smith LJ in this court on 29 April 2010 in which she refused permission to appeal in an earlier claim made by the applicant against the University.
9. The applicant was employed as a research officer at the Oxford Learning Institute, which is part of the University. She was on a fixed term contract which was not renewed, and in the other proceedings she brought claims of unfair dismissal, automatic unfair dismissal on grounds of public interest disclosure, discrimination on the grounds of race, religion, gender and sexual orientation, as well as victimisation.
10. I give the full number: 2701968/2007. I will refer to it in an abbreviated form.
11. That claim was dismissed by the employment tribunal, Employment Judge Byrne presiding, on 26 November 2008. Her appeal to the EAT was rejected at the initial sift and again at a rule 3.10 hearing before HHJ Clarke on 14 October 2009. Because she sought permission to appeal to this court from that finding, the matter came before Smith LJ in the way I have indicated.
12. In 2009 the applicant brought a second claim against the University on much the same grounds (claim 2701483/2009). That is the present proceeding. Prehearing review before the tribunal was scheduled for 19 November 2009. On 29 October Dr Evans asked for that hearing to be adjourned until her application for permission to appeal in the first claim, 968, had been decided. The University objected to that adjournment, wishing to see early progress in the matter, and they refer to the importance in their view of an early resolution:

"Further delay to the resolution of this case would not be in the interests of justice."

13. By letter of 5 November 2009 Employment Judge Byrne rejected the application of Dr Evans. The dates are set out in the judgment of HHJ McMullen against which this appeal is brought. On 12 November 2009 the applicant again requested postponement of the prehearing review. She enclosed a supporting letter from her general practitioner. As a result, on 18 November 2009 Employment Judge Byrne agreed to postpone the prehearing review. However, before that direction was given, Dr Evans had appealed the original refusal of 5 November 2009. That appeal was rejected on the sift by Underhill J, President of the EAT, and the decision was communicated to the applicant on 17 November. Her application to take matters further was made on 18 December 2009, which was three days out of time.
14. The matter came before the Registrar of the EAT. He decided not to extend time:

"[Dr Evans] admits that she made a mistake in reading the information from the extract of the rules provided with the Rule 3(7) rejection letter. She excuses this lapse by stating that she has been on medication since January -- presumably January 2008. However during that time she has conducted litigation against the Respondent, filed two other appeals, an appeal to the Court of Appeal. There are no grounds for assuming that she is unable to deal with matters in a timely fashion. [Dr Evans] is an experienced litigant and fully understands the process."

15. It was from that decision of the Registrar that an appeal was made to HHJ McMullen as described earlier. In his letter of 15 April HHJ McMullen stated:

"I am listed to hear this appeal, I am an Oxford MA but have had no contact directly with the University itself, save for being on the mailing list, or the Learning Institute. If either party has any observations please respond as soon as possible."

16. In her response of 16 April the applicant stated:

"It is important to me that there be no traceable connections to Oxford in terms of the hearing of and judgment of the methods pertaining to my case because in a sense, my case is an appeal of the statutory disciplinary processes within the University."

17. The applicant also sought continuity, stating that her earlier appeals had been dealt with either by HHJ Clarke or by Underhill J. Underhill J is also a graduate of Oxford University.
18. In a further letter HHJ McMullen stated on 19 April:

"There is no substance in the Claimant's fear about my hearing the appeal. It would not appear to the informed reasonable observer that my might having a degree from Oxford would make favour or disfavour the University, an employee, an office-holder, a contractor or a student. His Honour Judge Serota QC who is indisposed, and the President who ruled on Rule 3(7) are also graduates."

HHJ Serota is mentioned because the case initially, I understand, had been assigned to him. On 23 April HHJ McMullen dismissed the appeal; he also refused permission to appeal.

19. Application is made to this court. In the application, reference is also made to a claim for a review of the decision of Smith LJ of 29 April 2010. I make clear that I can take no action in relation to those other proceedings. This appeal is confined to the appeal against HHJ McMullen declining to reverse the registrar's decision.
20. In his judgment HHJ McMullen upheld the registrar's decision on the grounds that the applicant had not presented persuasive medical evidence that she was too unwell to submit the form in time. The application could have been made before the medical appointment referred to by the applicant. HHJ McMullen stated that the decision of 5 November not to postpone was a case management decision in respect of which the judge had a wide discretion and he was entitled to reach the conclusion he did. HHJ McMullen stated that there was no error of law in Underhill J's decision and that the decision did not infringe the applicant's rights under the European Convention on Human Rights.
21. HHJ McMullen regarded the proposed appeal as an abuse of process. The postponement of the prehearing review had already been achieved when Employment Judge Byrne reconsiders the position. HHJ McMullen also noted that, in substance, the applicant's concern was to set aside the tribunal's judgment in the other claim, 968, and that could not be achieved through pursuit of this appeal.
22. In her skeleton argument the applicant refers to the primary rule of natural justice that no party can judge its own case; that the learned judge had links with the University of Oxford by reason of his graduation and his membership of the University's alumni, which made it inappropriate that he should hear the appeal. The alumni website is hosted on the University's website. The alumni office is entrusted with the task of fundraising and that involves an interest, it was submitted, as between the judge and the University.
23. He also has a right to vote on certain issues in convocation. Complaint is also made at this stage about Underhill J's involvement. It is claimed that the respondent's witnesses at the hearing -- not in the course of the proceeding but in their work -- relied on alumni operations. Reference is made to a number of documents and specifically to Professor Gibbs, then director of the applicant's department, who was strategically involved as advising the more senior management regarding modernising: that is a matter that directly involves alumni attitudes and opinions.
24. Procedural complaints are also made. There was an error of dates in Underhill J's involvement. In a letter dated 26 March 2010 the EAT's staff accepted that the wrong seal date had been contained in the EAT's letter of 17 November 2009. That, it is accepted, was an administrative error:

"Please accept my sincere apologies for any inconvenience or confusion caused by this error."

I can find no basis for a point of law giving a real prospect of success in any of the procedural issues to which reference is made.

25. There remains the question of actual or ostensible bias on the part of HHJ McMullen and the submission that he should have recused himself. In the circumstances I do not accept that submission. There is no evidence of actual bias, and in my judgment a fair-minded and informed observer, contemplated in such cases as Porter v Magill, would not conclude that there was a real possibility of bias by reason of HHJ McMullen's graduation from the University of Oxford and his membership of its alumni.
26. He has no involvement in the University or in University life beyond that. If he was active in councils of the University, different considerations might arise, but his right to vote on certain issues in convocation does not, in my judgment, create an appearance of bias in his sitting on the case. He is a graduate of the University of Oxford, as are many thousands of other citizens in this country. That includes a significant proportion of the judiciary, who are graduates of that well known educational establishment.
27. In my judgment he was not obliged to recuse himself. I see no real prospect of a successful appeal to this court, and accordingly this application is refused. I refuse it in agreement with Elias LJ, whose written refusal I should also read:

"In my judgment, the fact that His Honour Judge McMullen QC was a graduate at Oxford University does not raise the issue of bias, whether actual or apparent.

As for the other grounds, the judge was plainly right not to allow an appeal against the decision of the Registrar. A very strict approach is taken to lodging appeals in time in the Employment Appeal Tribunal and the explanation given here for not doing so was very weak, and in any event, for reasons given by the judge, the appeal has no merits, and is also, for the reasons by the judge, academic. I see no prospect of this appeal succeeding."

28. I agree with that approach to the case. The application is refused. (I am not a graduate of the University of Oxford.)

Order: Application refused