ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge McMullen QC; His Honour Judge Hand QC
Case No: UKEATPA/1146/09/LA, BAILII:  UKEAT 1146_09_2907
Strand, London, WC2A 2LL
B e f o r e :
| JUSTIN OLIVER ZINDA
|- and -
|(1) THE GOVERNING BODY OF BARN HILL COMMUNITY HIGH
(2) IAN MARSHALL
(3) MRS K. WATHEN
The Respondents were not represented
Hearing date: 18 April 2011
Crown Copyright ©
Lord Justice Rimer :
'6. The parties will appreciate, as the judge had informed them, that he would be absent for a period of some months, the transcribed document, being the tribunals reasons to the Judgment, was then only seen by the judge on his return.'
'Also considering that the Respondents are adding new witness statements and keep blaming Jarvis and Mr Vjay Rupra (IT Technician) for their action, I am requesting that the Tribunal orders (a) the Manager of Jarvis (in the school), (b) the School Business Manager (who liaises with Jarvis) and (c) Mr Rupra to attend these proceedings as witnesses who could be cross-examined by both the Claimant and the Respondent.
This application is necessary considering the injustice I will suffer if the above-mentioned people are not ordered to attend the proceedings. I would ask the Tribunal to take into consideration the guidelines set out by the National Industrial Relations Court in Cocking v. Sandhurst (Stationers) Ltd in deciding whether to accede to this application.' (Emphasis as in the original).
The Cocking case,  ICR 650, has nothing to do with the calling of witnesses and so provided no support for that aspect of his application.
'(a) what decision the Tribunal made on the Appellant's application dated the 17th day of November 2008 (copy attached) for an order that the Mr Vijay Rupra should attend as a witness to be cross-examined by both parties;
(b) when that decision was made;
(c) whether a separate order (with or without reasons) was promulgated in relation to the decision, if so supplying a copy of the same;
(d) what the Tribunal's reasons were for that decision;
(e) on what occasion the parties were informed (as referred to at para. 6 of the review decision of the 28th day of July 2009) that the Judge would be absent for some months, and the gist of what was said about that absence.' [I quoted paragraph 6 of that decision at paragraph  above].
'For the above reasons the learned Judge considers that this Appeal has no reasonable prospect of success and that, in accordance with Rule 3(7) [of the Employment Appeal Tribunal Rules 1993], no further action will be taken on it.
Your attention is drawn to Rules 3(8) and 3(10) of the EAT Rules. A copy of Rule 3 is enclosed with this letter.'
'A.1.1 The Tribunal was informed that there were intimidation [sic] of witnesses. Witness statements were written and the complaints were heard at the hearing. I informed the Tribunal by letters (please see my communication of 12 January 2010 regarding intimidation) and during the hearing repeatedly.
A.1.2 The tribunal was repeatedly informed that the Respondents were stopping the Appellant from getting in touch with Mr Rupra by refusing the Appellant access to the school and refusing to issue him with Mr Rupra contact details. The Appellant asked for Mr Rupra's address but his request was denied. So the Appellant could not even serve the initial order even if Mr Rupra was free to testify. The Employment Appeal tribunal is asked to refer to the incident of 20th July 2007 in my witness statement (at the end of term when the Appellant tried to deliver a letter to the Respondents).'
' unwittingly totally supports my reasons for appeal (as outlined in my initial notice of appeal). It also proves that the ET judge's response (dated 7 January 2010, please see pp 92-95 of the bundle) to the EAT sealed order (dated 18 November 2010) was totally untruthful.'
He did not explain why the application did either of those things but said that he was relying upon it as providing 'further grounds why both my appeal against the Registrar's order and fresh notice of appeal should be allowed.' He continued:
'4. Relying upon his immunity from prosecution, the ET judge, in his response dated 7 January 2010, had deliberately excluded evidence and in doing so, he had ipso facto tried to exclude justice because evidence is the basis of justice.
5. Under these circumstances, the chances for me to have a fair hearing at the Watford ET are nil. I am therefore applying that all my future ET hearings (after the EAT hearings) be moved to another neutral ET.' (Emphasis as in the original)
'At the end of the first day, the Judge asked the Claimant to clarify the position with respect to his witnesses and whether the evidence to be given by the parents could be dispensed with as it was likely to be hearsay. The Judge directed the Claimant to give further thought to the witnesses to be called and to address the issue first thing on the second day of the hearing.
On the second day, 22 July 2008, the Claimant attended the hearing with some of his witnesses and asked that the students be interjected as they had taken time off from work to attend on that day. The Claimant continued with his allegations of intimidation.
The Claimant asked the Judge for witness orders for his witnesses so that they could take time off work. He then requested witness orders on the basis that his witnesses were reluctant to come forward as they had been systematically interviewed by the Respondent and intimidated. The Claimant also referred to another member of staff at the School, Vijay Rupra, for whom a witness statement had not been produced. The Claimant informed the Judge that Mr Rupra was one of the witnesses who had changed his mind to come forward to the tribunal.
As the Claimant would not relent with respect to the allegations of intimidation, the Judge asked to hear evidence about intimidation and directed the Claimant to identify the witnesses who were alleging that they had been intimidated by the Respondents and that they were to provide statements setting out the allegations of intimidation for the Respondents to comment. The Respondents were to respond to the statements and the allegations. The Tribunal would consider issuing witness orders for the witnesses once identified.
On the third day of the hearing (23rd July) the Claimant stated that he required a witness order for L. Edward, M.O. Callaghan, R. John, C. Graham, V. Rupra and R. Chand, alleging that R. Chand had also been intimidated by the Respondents.
At 11.55 that day the Judge issued witness orders for the Claimant to serve on the witnesses. Our recollection is that the witness orders for the parents were declined on the basis that their evidence was limited to hearsay.
At the end of the hearing on day four (24 July 2008) the Claimant stated that he no longer wished to call Mr Rupra to the hearing because he had been influenced by the Respondents. The Claimant also stated that he had not as at that time served the witness order on Mr Rupra.
The hearing had to be reconvened on 18 November 2008. The Claimant requested the Tribunal to grant a witness order for Mr Rupra so that he could cross-examine Mr Rupra. The Judge advised the Claimant that he could not cross-examine his own witness. The Claimant then asked the ET to call Mr Rupra so that he could be cross-examined by him even though the ET had previously issued a witness order for Mr Rupra at the behest of Claimant. At the end of the hearing on 18 November the Claimant advised the Tribunal that he had not served the witness order on Mr Rupra and that he would not be calling him if he could not cross-examine him. The Judge withdrew the witness order for Mr Rupra.
Also on 18 November the Claimant stated that a student Corrine Edwards said the pressure was too much and asked the Judge to issue a witness order for her. The Claimant also advised that Mr Dutta would not be attending as he felt unwell. Also on that day the Claimant asked the Tribunal to include Ms Michelle Moore as a named Respondent to the proceedings which the ET declined.
At no time did the Claimant produce to the Tribunal evidence of intimidation of witnesses nor did his witnesses give evidence in this regard.'
The hearing before Judge McMullen on 29 July 2010
'12. He said he was hoping to complete drafting while he was in Geneva and he would be able to post or email the EAT with his appeal on the 21st. But because of difficulties with the Internet he did not allow himself sufficient time. He then went on, having had no sleep at all, to fly via the Gulf to Hong Kong. While in Hong Kong, on 24th March 2010, he submitted the appeal.
13. He tells me that the appeal was written almost in its entirety while he was in Geneva, that is 20 March 2010. He also points out that there is a time difference in Hong Kong of 7 or 8 hours and this also created a difficulty.'
' go ahead knowing the deadline of submitting the fresh notice to the EAT. He never did submit an application for permission to the Court of Appeal. So what he decided to do on 8 March, by way of submitting a fresh Notice of Appeal within 28 days of the EAT was in fact done albeit two days late. The EAT officer who told him about the procedure at the EAT was correct. Whatever advice was given by Hillingdon did not affect the timing of the fresh Notice of Appeal.'
' As he told me, almost the entirety of the Notice of Appeal was drafted while he was in Geneva, that is he could have brought it back from Geneva and submitted it while he was in the UK on 20, 21 or 22 March. He chose instead to take the material to the Far East in order to complete it from there.'
' I ruled it was not necessary for the hearing before me. These relate to the Employment Judge's response to the present matter when he stayed the case. All this material was before the President when he formed the opinion that the Claimant's case had no reasonable prospect of success.'
'Mr Fraser-Urquhart, relying upon, at the very least the President's opinion, submitted this was good evidence that there was no merit in the appeal and the President had given his opinion after seeing the Judge's notes. He will not have seen what the Claimant wishes to draw attention to in the Respondent's submissions on costs. Mr Fraser-Urquhart also reminds me that the fresh Notice of Appeal is very substantially the same as the first and second Notices of Appeal because there is express incorporation of them. Therefore, the opinion given by the President still stands. But I decline to make a decision upon this. It is not necessary for me to consider the merits for the purposes of the exercise of discretion.' (My emphasis)
'Mr Zinda is in a better position than many before this court, he being a highly articulate communicator and able to represent himself and demonstrably able to comply with the rules as he has previously shown. In those circumstances, there is no basis on which I should exercise discretion to allow this appeal two days out of time. This is not an exceptional case.'
Mr Zinda's wish to challenge to that decision
'Under these circumstances, Mr Henry unlawfully barred my having access to redress through the appeal courts (EAT and possibly the Court of Appeal). This means, ipso facto, my initial Notice of Appeal was nil [sic] and void (i.e. it can be considered as if it has never taken place). It is for this reason that I am applying for my initial Notice of Appeal to be reconsidered by the EAT in light of this exceptional and unusual fresh evidence.'
'In any event, I believe the EAT's judges to be astute enough to deal with this 'judicial imbroglio' and to stop this 'anathema to justice' spiralling out of hand. The gist of the matter is either I did give the reason why a neutral witness order was required or I did not. If I did, then my initial Notice of Appeal had a reasonable prospect of success and further action should have been taken; and if I did not, then the Respondents' cost application (which is to be heard on 17 August 2010 is utterly unacceptable. It is a total anathema to justice because the law cannot punish someone twice in completely related proceedings: first for not doing something and then, secondly, for doing what they have been accused and punished for not having done in the first place.'
The decision of His Honour Judge Hand QC