England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR JUSTICE WILKIE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th July 2012

Lord Justice Pill:

1. This is an application for permission to appeal a decision of Wilkie J following a hearing on 29 November 2011. There is a protracted history to this litigation, particulars of which are set out in the Rule 4.14A statement submitted by Mr Arfan Khan, who appears on behalf of the applicant. I do not propose to go through the whole sequence for present purposes.
2. The immediate background is set out in the judgment of Wilkie J and I will read the first and a part of the second paragraph. The three distinct matters the judge refers to:

"Logically the first matter concerns an appeal against the decision of the Registrar on 29 July of this year refusing an extension of time in which to apply for a review of a decision of the EAT dated 24 June dismissing, after a hearing under Rule 3(10) of the Employment Appeal Tribunal Rules 1993, an appeal against a case management decision taken by an Employment Judge on 4 May this year, which, in turn, refused to vary an order that had been made on 22 March this year on a case management discussion, which purported to limit the allegations to be considered by an Employment Tribunal in due course to a series of events commencing in 2008."

Under the heading "Background" at paragraph 2 the judge added:

"The proceedings being considered in the case management discussions were twofold, and commenced on 8 April and then 18 September 2009, in which various claims of discrimination on the grounds of race, and complaints in respect of pay, were launched."

The claim was by Miss Emezie, the applicant against British Telecommunications Plc, the proposed respondents.

3. The order of 24 June referred to by the judge is an order of HHJ McMullen QC sitting alone in the Employment Appeal Tribunal. There had previously been a Rule 3(7) consideration by a different judge. In his written submission statement under the rules Mr Khan states at paragraph 1:

"The appeal revolves around the issue of whether Ms Jennifer Pinder of Berry Smith LLP, the Appellant's former solicitor, made a concession that the appellant will not pursue her victimisation claim between 2000-2008."

4. The applicant is now represented by a different solicitor, Mr Emezie, who is related to her. The relationship is not relevant.
5. The case management hearing of 4 May referred to by Wilkie J was conducted by Employment Judge Williams by way of a "telephone case management discussion". Mr Emezie represented the applicant in that discussion. A previous case management discussion had been held in March 2011 at a time when Ms Pinder was still acting.
6. In his oral submissions Mr Khan says that there are three points he seeks to raise. First, was the request for an attendance note prepared by Ms Pinder, made before the EAT hearing before HHJ McMullen? I have considered her attendance note, at page 9, dated 22 March 2011. That is the occasion of a case management conference. There had been an earlier one in December 2010. I will not read it in full.
7. The second issue was an alleged concession made by the applicant's solicitor, Ms Pinder, to abandon the claim in the years 2000 to 2008. The third question is whether the Registrar at the EAT applied the correct test when refusing to review the EAT's decision, which then became the subject of the appeal to Wilkie J. I refer to his summary of the background. Mr Khan submits that the correct test on an application for a review out of time is not the strict test for appeals out of time in cases such as these. It is whether the interests of justice require it.
8. On the first point Mr Khan has referred me to an email request of Berry Smith, dated 29 March 2011, for documents. The reply was that in effect Berry Smith were exercising a lien because their fees had not been paid. It appears that three months went by before that was followed up. There was a meeting at the end of June referred to in an email. An email dated 1 July followed that meeting. I have had no explanation as to why there had not been an earlier follow up, but that in any event is not material to the conclusion I have reached. It is submitted that Wilkie J was simply wrong when he held at paragraph 15 of his judgment that the attendance note had not been requested. It had been requested, though there was a substantial lapse of time before the request was followed up.
9. The second point, the one highlighted by Mr Khan at the first paragraph of his statement under the rules, is of more significance, whether in fact a concession was made and that turns first upon the construction of the attendance note of Ms Pinder and second upon the discussions at the case management conference. That, in my judgment, is the feature of the case on which emphasis must be placed. I refer to the protracted nature of the litigation and have said enough about the various applications to demonstrate what is more fully set out in Mr Khan's note.
10. Case management conferences were held. I have referred to that of March 2011. There was then the further telephone discussion, at which the applicant was represented by her present solicitor, on 4 May 2011. Employment Judge Williams, a very experienced employment judge, considered the matters at issue in considerable detail and with obvious care in his note. He referred to the case management discussion of 4 October 2010. He was considering the application to amend the claim and Wilkie J also referred to that, stating that what he was considering was:

"Appeal of the registrar's decision to refuse to extend time to seek a review of the EAT's refusal to review its decision to reject an appeal against an Employment Judge's case management decision dismissed."

11. Was Employment Judge Williams correct to take the view he did of the amendment and was the Registrar entitled to refuse to order the review in the manner he did? In paragraph 14 Employment Judge Williams said:

"To permit that allegation now to be relied upon as a substantive claim will firstly undermine the concession made by Ms Pinder on the claimant's behalf and, secondly, place an obligation on the respondent to investigate matters now up to a decade old. In my judgment Mr Emezie's submission that the amendment sought would not jeopardise a hearing date is unrealistic. These proceedings are already two years old and, as currently pleaded, raise allegations going back to 2008. To broaden the scope of the enquiry is almost certain to mean that the hearing will be postponed."

12. I interpose that the ET hearings were conducted by a differently constituted tribunal in June and July 2011 and there was a nine-day hearing. I repeat, the issue is whether the tribunal ought to have been considering not only post-2008 events but events between 2000 and 2008. It is not suggested that events between 1996 and 2000 should have been considered. At paragraph 16 Employment Judge Williams stated:

"Perusal of the pleadings makes clear that, with the exception of the early allegations between 1996 & 2000 which have been withdrawn, the centre of gravity of the claimant's allegations, including her allegations of victimisation, is to be found in the period 2000 to date."

It was in that context that the employment judge refused permission to the applicant to amend. He added at paragraph 17:

"This case is already old and needs to be dealt with expeditiously. Fairness to the claimant does not require this amendment. She will rely on numerous allegations of victimisation from 2008 onwards. It is clear from what Ms Pinder says that it is in that latter period that the real dispute between the parties is to be found and that dispute will be adjudicated upon. To allow this amendment is an unnecessary complication in an already significantly complicated case. I therefore refuse this application."

13. Thus the judge had in mind not only whether a concession was made, he had in mind, following the discussion by telephone in May 2011, the overall context of the case. Employment Judge Williams was plainly concerned to do justice as between the parties. He had the interests of both parties to consider. In the claimant's interests, he had in mind the need to focus on what the real allegations were and not to allow the tribunal to be distracted from those by earlier ones, which on the judge's review of the situation, were not central. He expressed views which I have already cited.
14. That in my judgment is the crux of this case. Whatever procedural defaults may have occurred, if they were to be remedied and whether or not the attendance note itself was applied for before the hearing before HHJ McMullen, even if those points are resolved in the applicant's favour, this is not a case where there is a real prospect that the court will grant the relief sought. HHJ Williams made a case management decision. That has been reviewed by Employment Appeal Tribunal judges. The Registrar has considered it, considered the overall situation and in a careful judgment, if I may say so, Wilkie J has done the same.
15. Wilkie J refers to Employment Judge Williams's ruling, stating at paragraph 8:

"Employment Judge Williams, sitting alone, considered that issue, amongst others, in a further telephone case management discussion and he dealt with the application at paragraphs 7-16."

16. Wilkie J referred not only on the disputed concession but other reasons given by the employment judge. I also accept the approach to Ms Pinder's attendance note expressed by Wilkie J.
17. Wilkie J at paragraph 13 recorded the submissions made to him by counsel then acting, Mr Gardiner, and stated :

"They then go on to assert that the document is relevant and would probably have had an important influence on the outcome of the hearing, given that the issue in the appeal was whether the concession recorded by Employment Judge Williams was in fact made by her former legal representative. The letter asserts that the attendance note confirms that the Employment Judge noted the concession incorrectly and/or misunderstood the concession that was made, and confirms that the Appellant's previous representatives did not make the concession recorded by Employment Judge Williams, namely that the appellant was withdrawing her claim for the period of 2000-2008."

Paragraph 17:

"Secondly, and more fundamentally, the attendance note does not support the case that the Claimant asserts. Rather, it confirms that a concession was made by Ms Pinder. Her attendance note is fuller than the attendance note of the Respondent or the note of the Judge and it makes it clear not only that she was abandoning any claims that had been made between 1996 and 2000, but she was eschewing any argument that anything that happened between 2000 and 2008 constituted a continuous course of events, and was confirming the focus of the upcoming tribunal hearing would be on the events commencing in 2008, as to which there was an extant argument about whether or not those claims were out of time."

18. Respectfully, I say that is an entirely realistic approach to the issues in this case. It was much better, as Ms Pinder had indicated, and it does not appear to have been challenged by Mr Emezie at the main conference, that the emphasis in everyone's interests, including those of the claimant, should be post-2008 events. It is difficult to see that it would have enhanced justice if, in the circumstances described, earlier claims of victimisation were brought into the picture. No challenge is made before me to the fairness of the nine-day hearing before the employment tribunal, though I was told at the end of the hearing that it is under challenge.
19. I have considered in detail the first and second points of Mr Khan. I have indicated that, even if the third point were to be decided in his favour, it would not affect my overall view of the case. This is not a case in which it would be appropriate to attempt to lay down any principles as to whether Aziz principles (Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111 ) apply to a review as well as to a substantive appeal. Even success on that issue could not avail, in my judgment, the applicant in this case, having regard to the background which I have summarised. I find no fault in the decision of Wilkie J.
20. I see no real prospect of a successful appeal upon further consideration and accordingly this application must be refused.

Order: Application refused