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Krishna, Re Petition for Judicial Review [2003] ScotCS 207 (15 July 2003)

OUTER HOUSE, COURT OF SESSION

P 689/03

OPINION OF LADY SMITH

in the Petition of

MRS INDU KRISHNA

Petitioner;

for

Judicial Review of a decision by Lord Johnston in terms of Rule 3(10) of the Employment Appeal Tribunal Rule 1993

_______________

Pursuer: Napier; Bishops

Defender: Cullen, Q.C., Lindsay; H.F. Macdiarmid

22 July 2003

[1] The Petitioner has, by way of petition for Judicial Review, raised a challenge to a decision made by Lord Johnston, acting as Employment Appeal Tribunal Judge, that no further action should be taken in respect of two appeals that had been submitted by her to the Employment Appeal Tribunal ("the Appeal Tribunal"). These appeals were in respect of two unsuccessful applications to the Employment Tribunal.

The Background:
[2] The relevant sequence of events, as disclosed in the documents, was as follows:

[3] On 25 March 2002, an Employment Tribunal ("the Tribunal") chairman, Mr A McArthur sat alone under and in terms of the provisions of paragraphs 15(2)(e) and 15(8) of the Employment Tribunals (Constitution etc.) (Scotland) Regulations 2001 S.I 2001/1128 ("the 2001 Regulations") to hear the respondents' motions that the petitioner's cases reference numbers S/102273/97 and S/1002223/00 should be struck out by reason of excessive delay. On 21 August 2002, his decision was issued. It was that both cases should be struck out by reason of excessive delay in proceeding with them.

[4] The petitioner sought to appeal the Tribunal chairman's decision. Rule 3(1) of the Employment Appeal Tribunal Rules (S.I 1993/2854) ("the 1993 Rules"), as amended by the 2001 Regulations, provides that every appeal to the Appeal Tribunal "shall be instituted" by the service of various documents including a notice of appeal. The petitioner served such notices dated 27 September 2002 with the relevant documents thus, given the terms of Rule 3(1), instituting appeals against the decisions of the Tribunal chairman. By letter dated 14 November 2002, the Deputy Registrar of the Appeal Tribunal responded advising that, in his opinion, the notices of appeal did not identify an error of law and that, accordingly, the Appeal Tribunal did not have jurisdiction to entertain them.

[5] In so doing, the Deputy Registrar clearly had in mind the provisions of Section 21 of the Employment Tribunals Act 1996 (1996 c.17) ("the 1996 Act") which provides:

"21. Jurisdiction of Appeal Tribunal

(1) An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an employment tribunal ....".

[6] In his letter, the Deputy Registrar drew the petitioner's attention to Rules 3(7), (8) and (10) of the 1993 Rules which, as amended by the 2001 Regulations and insofar as relevant, provide:

"(7) Where it appears to the Registrar that the grounds of appeal stated in the notice of appeal ....do not give the Appeal Tribunal jurisdiction to entertain the appeal, he shall notify the appellant ...accordingly informing him of the reason for the opinion and, subject to paragraphs (8) and (10), no further action shall be taken on the appeal.

(8) Where notification has been given under paragraph (7), the appellant ....may serve a fresh notice of appeal.

(10) Where an appellant .....expresses dissatisfaction in writing with the reasons given by the Registrar, under paragraph (7), for his opinion that the grounds of appeal stated in a notice ...do not give the Appeal Tribunal jurisdiction to entertain the appeal, the Registrar shall place the papers before the President or a judge for his direction as to whether any further action should be taken on the appeal".

[7] The petitioner then submitted fresh notices under cover of a letter which, I was advised, contained a request by the petitioner that if the Deputy Registrar was still of the view that the notices did not contain relevant grounds of appeal, the papers should be put before Lord Johnston, as Employment Appeal Tribunal Judge, for his consideration.

[8] By letter dated 19 December 2002, the Deputy Registrar advised the petitioner that he had reached the view that the fresh notices did not "identify any new errors of law" and that he had, as requested, placed the papers before Lord Johnston. He had, accordingly, treated the inclusion of the request from the petitioner in her letter, to which I have already referred, as though it was an expression of dissatisfaction in writing for the purposes of Rule 3(10). There was attached to that letter a copy of an order pronounced by Lord Johnston which narrated that:

"UPON the Appeal of the Appellant from the decision of the Deputy Registrar on the 18^th day of December 2002, refusing to Register the Appeal

IT IS ORDERED that the application be refused".

The order was headed: "EMPLOYMENT APPEAL TRIBUNAL" and date stamped 19 December 2002, with the Appeal Tribunal's stamp.

[9] The wording of Lord Johnston's order may be seen as suggesting that there is, within the Appeal Tribunal, a hierarchical system giving rise to an internal appellate jurisdiction in respect of the issue of whether or not the appeal raises a question of law. It is clear, however, that no such system exists. Looking at the substance of the order rather than its form, its plain import is that, in carrying out his functions under and in terms of Rule 3(10) of the 1993 Rules, looking at the whole circumstances including, presumably, the views of the Deputy Registrar, given that they could be expected to have been recorded in the case "papers", Lord Johnston decided that no further action should be taken on the appeal.

[11] The petitioner has not sought leave to appeal against Lord Johnston's decision either from the Appeal Tribunal or from this Court.

The issue:
[12] At the first hearing before me, the sole issue that was debated was that which is encapsulated in the respondent's first plea in law:

"The petitioner having failed to exhaust her statutory rights of appeal the present petition is premature and should be dismissed".

[13] The issue arises out of the terms of Section 37 of the 1996 Act which provides:

"(1) Subject to subsection (3) an appeal on any question of law lies from any decision or order of the Appeal Tribunal to the relevant appeal court with the leave of the Appeal Tribunal or of the relevant appeal court.

(2) In subsection (1) the 'relevant appeal court' means -

....

(b) in the case of proceedings in Scotland , the Court of Session".

The Respondent's submissions:
[14] Mr Cullen Q.C., senior counsel for the respondent, submitted that his first plea in law should be sustained. At the outset he stressed that he was not submitting that the petition was incompetent, recognising that there were occasions when the Court may consider it appropriate to allow a party to proceed by way of judicial review even although all avenues of appeal have not been exhausted, in the exercise of the equitable jurisdiction which underpins the remedy (Judicial Review: Clyde and Edwards Ch.12; Ingle v Ingle's Trustees 1999 SLT 650 ). This was not, however, a case in which the petitioner sought to argue that there were exceptional or particular circumstances which made it appropriate to afford the remedy of judicial review on equitable grounds despite the failure to utilise an avenue of appeal that was open to her. Accordingly, if the petitioner did still have available to her an unexhausted avenue of statutory appeal, the present petition was premature.

[15] He submitted that it was clear that Lord Johnston's decision of 19 December 2002 was a decision and order of the Appeal Tribunal. Section 37 of the 1996 Act was in wide, unqualified and unrestricted terms and the decision attacked by the petitioner clearly fell within it.

[16] Very properly, Mr Cullen drew my attention to the opinion of Lord Cameron in the unreported case of William Mackenzie, Petitioner, (2 August 1999). That case concerned a petition for judicial review in circumstances which were similar to those of the present case in that the petitioner had sought to appeal against a finding of an Employment Tribunal that an employee of his had been unfairly dismissed, had received intimation from the Deputy Registrar that the Appeal Tribunal did not have jurisdiction to entertain the appeal in that the notice of appeal did not identify an error in law, and the matter had proceeded to the stage of the papers being put before the Employment Appeal Tribunal judge, Lord Johnston. That was followed by the Deputy Registrar writing to the petitioner advising that Lord Johnston was of the view that the Deputy Registrar had applied the correct tests and that no further action should be taken on the appeal. It does not, I note in passing, appear that Lord Johnston pronounced any order in that case albeit that it seems clear that he did decide that no further action should be taken in respect of the appeal.

[17] In Mackenzie, it was submitted to Lord Cameron on behalf of the respondents that the petition for judicial review was incompetent as the petitioner had not exhausted the statutory remedies open to him in that he had not sought leave to appeal against Lord Johnston's decision under Section 37 of the 1996 Act. Lord Cameron rejected that submission, expressing the opinion that Lord Johnston's decision, which he clearly regarded as a decision of the Appeal Tribunal, was not within the ambit of Section 37.

[18] Mr Cullen, whilst recognising that Lord Cameron's opinion was of persuasive effect, invited me to depart from it. He submitted that his reasoning was, with all due respect, unsound. It was clear that Lord Cameron had been unduly influenced, in his interpretation of Section 37, by the provisions of Section 35 of the 1996 Act. Further, it was incorrect to approach the matter on the basis that a decision by the Appeal Tribunal that it has no jurisdiction is not a disposal of an appeal and is not a decision on a question of law for the purposes of Section 37. It was, he submitted, clear that a decision that no further action should be taken in respect of an appeal was, in effect, a decision that the appeal was dismissed. In support of that submission, he drew my attention to the fact that in terms of paragraph 9b (15) of the Practice Direction 2002 issued in respect of appeals to the Employment Appeal Tribunal in England, the language was to the effect that it was recognised that a decision by the Appeal Tribunal at a preliminary hearing that an appeal should not go to a full hearing led to dismissal of the appeal. Mr Cullen submitted that it was clear that the appeal could, once an adverse decision was made under Rule 3(10), go no further. It would be ridiculous to regard it as remaining in some state of limbo.

The Petitioner's submissions:
[19] Mr Napier Q.C, senior counsel for the petitioner moved me to repel the respondent's first plea in law. He submitted that I should follow Lord Cameron's decision in MacKenzie. The requirements of Section 37 of the 1996 Act were not, he submitted, met. There had not been a decision of the Appeal Tribunal because the decision was one that was made prior to the assumption of jurisdiction, and also because of the person who had taken it.

[20] In expansion of the first part of his submission, Mr Napier, founding on the provisions of Section 28(4) of the 1996 Act, argued that Lord Johnston, when making his decision, was not acting as the Appeal Tribunal. He did not, however, suggest what he was acting as if he was not so doing. Nor did he address the question of how he could have power to decide that the appeal should go no further if he was not acting as the Appeal Tribunal.

[21] Mr Napier did, albeit with limited enthusiasm, seek to argue that the appeal had, however, not actually been disposed of by reason of Lord Johnston's order and that being so, no decision had been made by the Appeal Tribunal which could be appealed against. Rather, the appeal was, he submitted, still in existence. He did so under reference to Rule 33 of the 1993 Rules which allows for review of decisions of the Appeal Tribunal and correction of errors within 14 days but the provisions of that rule do no more than demonstrate that for 14 days after the pronouncing of an order, an apparently final decision may be opened up. Further, he referred to the possibility that fresh evidence might arise, giving an appellant fresh grounds of appeal. He did, however, concede that in such circumstances, the appellant would have to proceed by serving a fresh notice of appeal thus, it seemed, undermining his own argument that the original appeal would have still been in existence.

[22] Mr Napier referred to the case of Da Silva v Loma Engineering Ltd unreported Court of Appeal, 30 July 1996 as an example of how matters could have proceeded in this case. Lord Johnston could, he submitted, have properly ruled that the appeal be "heard" on the basis of the documentation filed, there could then have been a hearing by the Appeal Tribunal so that the ultimate decision would have been one made by the Appeal Tribunal.

Decision:
[23] I have reached the view that the petitioner does still have open to her an avenue of statutory appeal in that she could, in my opinion, apply under and in terms of Section 37(1) of the 1996 Act for leave to appeal against Lord Johnston's decision of 19 December 2002.

[24] I, accordingly, am not persuaded that I should follow the approach taken by Lord Cameron nor do I accept that Lord Johnston was doing other than acting as the Appeal Tribunal in making the decision that he did and issuing the order that he issued on 19 December 2002.

[25] Section 37 of the 1996 Act is clear and unequivocal in its terms. A party who is aggrieved by any decision or order of the Appeal Tribunal can appeal against it, with leave, to the Court of Session provided it raises a question of law. A decision by the Appeal Tribunal as to whether or not it has jurisdiction clearly raises a question of law, namely that of whether the notice served, properly analysed, discloses an argument that the decision of the Employment Tribunal resulted from an error of law on its part. That is a question which was considered by the Deputy Registrar and by Lord Johnston, judging by the terms of the letters written by the Deputy Registrar to which I have already referred. Further, in this case, it is clear that Lord Johnston decided that the Appeal Tribunal did not have jurisdiction and, moreover, in respect of that decision, he pronounced an order the effect of which was that no further action would be taken in respect of the appeal. I am satisfied that the practical effect of his so doing was to dispose of the appeal. It was not seriously disputed on behalf of the petitioner that Lord Johnston had made a decision and an order. Indeed, the thrust of this petition for judicial review is to attack the decision that it is averred he made on 19 December 2002.

[26] Further, I am not satisfied that the decision appealed against needs to be characterised as a disposal of the appeal for Section 37 to apply. Provided that the Appeal Tribunal has made a decision or order that raises a question of law, it can be appealed against, albeit with leave. Lord Johnston made a decision and as a result of doing so, he pronounced an order. No doubt the stage that an appeal process has reached is something which will be taken into account when considering whether to grant leave. It is plain, in my opinion, that it is, accordingly, open to the petitioner to apply for leave to appeal under Section 37 of the 1996 Act.

[27] It is implicit in the view that I have expressed above that I do not agree with the petitioner's submission that, when making his decision and order, Lord Johnston was not acting as the Appeal Tribunal. The petitioner relied on the terms of Section 28(4) of the 1996 Act as demonstrating that he could not be so regarded but I do not see that it gives rise to any such implication. Section 28 of the 1996 Act provides:

"28 Composition of Appeal Tribunal

(1) The Appeal Tribunal may sit, in accordance with directions given by the President of the Appeal Tribunal, either as a single tribunal or in two or more divisions concurrently.

(2) Subject to subsections (3) to (5), proceedings before the Appeal Tribunal shall be heard by a judge and either two or four appointed members, so that in either case there is an equal number -

(a) of persons whose knowledge or experience of industrial relations is as representatives of employers, and
(b) of persons whose knowledge or experience of industrial relations is as representatives of workers.

(3) With the consent of the parties, proceedings before the Appeal Tribunal may be heard by a judge and one appointed member or by a judge and three appointed members.

(4) Proceedings on an appeal on a question arising from any decision of or arising in any proceedings before, an employment tribunal consisting of the person mentioned in Section 4(1)(a) alone shall be heard by a judge alone unless a judge directs that the proceedings shall be heard in accordance with subsections (2) and (3)".

Section 4(1)(a) refers to the person who, in accordance with the relevant regulations is the chairman of the Employment Tribunal. In this case appeals were taken from the decisions of a chairman of an Employment Tribunal sitting alone and, accordingly, the proceedings on appeal fell to be heard by a judge alone unless that judge ordered otherwise. It appears that, when considering the petitioner's appeals, Lord Johnston was sitting alone.

[28] Mr Napier seemed to suggest that since there was no express reference to the Appeal Tribunal in subsection (4) of Section 28, the judge acting alone in appeal proceedings thereunder would not be acting as the Appeal Tribunal. That cannot, in my opinion, be correct. The entire section deals with the composition of the Appeal Tribunal. The single judge referred to in subsection (4) has the power to direct that the appeal proceedings before him will be heard not by him sitting alone but in accordance with the earlier subsections (2) and (3) but he is not required to do so. It would seem odd if a decision on an appeal from an Employment Tribunal chairman sitting alone fell to be regarded as a decision of the Appeal Tribunal if determined in accordance with subsections (2) or (3) but not if determined by a judge alone, particularly since there is no provision for appeal from the judge sitting alone to the Appeal Tribunal. The absence of such provision is consistent with the correct interpretation being that when acting alone under Section 28(4) of the 1996 Act, the judge is acting as the Appeal Tribunal.

[29] No doubt, as Mr Napier submitted under reference to the Da Silva, case, Lord Johnston could properly have directed that the question of whether or not the notices disclosed any relevant ground of appeal be determined in accordance with subsections (2) and (3) of Section 28 of the 1996 Act. He chose, however, as was his entitlement, not to do so and I do not see that consideration of the Da Silva cases advances the petitioner's argument. Rather, I note that the terminology used by the Appeal Tribunal in respect of their decision in that case that no arguable point of law had been disclosed was that that resulted in the appeal being "dismissed", an approach which runs counter to that of the petitioner in this case.

[30] Turning to the case of William Mackenzie, whilst I have given careful consideration to the reasoning there expressed, I am not persuaded that the availability of Section 37 of the 1996 Act is excluded. Lord Cameron's opinion includes the following:

"Section 35 of the Act sets out the powers of an appeal tribunal 'for the purpose of disposing of an appeal'. Section 35(2) provides that any decision or award of an appeal tribunal has the same effect and may be enforced in the same manner as a decision or award of the body or officer from whom the appeal is brought. Section 37 provides ................ Where an appeal tribunal in terms of the Rules is charged with determining whether on the face of a notice of appeal served on it in terms of Rule 3(1)the grounds of appeal give it jurisdiction , and where following the procedure laid down in Rule 3(3) and (6) it determines that the grounds of appeal do not give it jurisdiction and that no further action will be taken on the appeal, that is prima facie, a decision on a question of law. But, in my opinion, it is not a decision or order disposing of the appeal in the sense of section 37 since it is not a decision that is taken after the appeal tribunal has assumed jurisdiction with a view to determining any question of law arising from the tribunal's decision, let alone one arising in the proceedings before the tribunal. Rather the appeal tribunal has held that it has no jurisdiction and thus cannot take any steps to dispose of an appeal by use of its powers. This conclusion is, in my opinion, consistent with the underlying purpose for which the powers given by section 35 are to be used. These allow an appeal tribunal to exercise any of the powers of the body or officer from whom the appeal is brought. But by holding that they have no jurisdiction, they are not exercising any such powers. Nor are they making a decision or award which has the 'same effect' or 'may be enforced in the same manner' as that of the tribunal. Their decision that they have no jurisdiction leaves the award of the tribunal unaffected and enforceable...."

[31] Lord Cameron relies strongly, in the above reasoning, on the provisions of Section 35. There seems to be an underlying assumption that the only decisions or orders that the Appeal Tribunal will make will be those they are empowered to make by virtue of the provisions of section 35. However, whilst that section empowers the appeal tribunal, when "disposing of an appeal" to exercise any of the powers that could have been exercised by the body or officer from whom the appeal was brought or to remit the case back to such body or officer, it is not expressed in such a way as to suggest that those are its only powers. Rather, the terms of Section 35 are readily understandable as being concerned with affording the appeal tribunal sufficient power over and above that which an appellate body could normally be expected to have to do what seems appropriate in a flexible manner even if that means its making an order of the type which would normally only be made by the body or officer appealed against. It affords the appeal tribunal the ability to act practically and pragmatically if it appears appropriate to do so. It is not, however, required to act in the manner set out in Section 35. It does, accordingly, seem to be misleading to state, as Lord Cameron does, that section 35 "sets out the powers of an appeal tribunal" because, simply put, Section 35 sets out some but not all of the Appeal Tribunal's powers. It must be that it also has all the powers that an appellate body could normally be expected to have, including deciding whether or not it has jurisdiction to hear an appeal.

[32] Further, there is nothing in the wording of Section 37 that suggests that its operation is in some way limited by the provisions of Section 35. The reliance, in the reasoning in Mackenzie on the decision appealed against not being "a decision or order disposing of the appeal in the sense of Section 37" seems to be misconceived, since Section 37 contains no such wording. Further, there seems to be no account taken of the fact that in terms of Rule 3(1) of the 1993 rules, once the notice of appeal and relevant documents are served on the appeal tribunal, the appeal is "instituted". The appeal can, at that stage, be regarded, in my opinion, as having arrived within the curtilage of the Appeal Tribunal and it has to decide what it is going to do with it. I recognise that the Act itself is silent on the question of the point at which an appeal can be said to have been instituted but, equally, the 1993 rules have been promulgated under very wide powers that are conferred by its section 33 "to make rules with respect to proceeding before the Appeal Tribunal". In all the circumstances, given that the appeals must thus be regarded as having been instituted, I do not see that the fact the Appeal Tribunal subsequently decides it does not have jurisdiction in respect that they do not disclose relevant grounds of appeal means that that decision is not properly to be regarded as a decision of the Appeal Tribunal for the purposes of Section 37.

[33] Further, to comment that a decision by an appeal tribunal that it has no jurisdiction leaves the award of the tribunal unaffected does not seem to assist the argument in either direction. The result of the decision of Appeal Tribunal will often be that the award of the tribunal is unaffected and enforceable but that does not mean that the Appeal Tribunal have not made a decision which can be appealed against under Section 37.

[34] It only remains for me to offer one or two general comments. I have based this decision on what I consider to be the proper interpretation of Section 37 of the 1996 Act. One of the effects of interpreting it so as to bring the decision of a single judge that the Appeal Tribunal does not have jurisdiction within its ambit is that a single Outer House judge will not, in the normal case, be put into the position of having to review the decision of another judge sitting alone. That is consistent with normal principle. I recognise that there may be cases in which, because of their particular facts and circumstances, it will be appropriate in the exercise of the court's equitable jurisdiction to allow the use of the remedy of judicial review even where to do so will entail having a single Outer House judge review the decision of another single judge sitting alone. It is, though, generally undesirable to proceed in such a manner, for obvious reasons. I recognise that appeals from one judge to another single judge occur in the context of the jurisdiction of the Sheriff Court. But it is recognised, as is commented by Sheriff MacPhail (Court of Session Practice: 2^nd edition) that it "is so anomalous in theory, as an appeal from one professional judge to another, that 'it is almost self evident that the system could never have had a deliberate originator'", the quotation which he relates being from Dove Wilson: The Practice of the Sheriff Courts of Scotland in Civil Cases, 4^th edition. In a case such as the present, however, not only is it sought that an appeal be taken from one judge to another single judge but it is sought in circumstances where, as I have already discussed, the first judge was acting as an appellate body. Those circumstances do seem to make it even more anomalous and therefore even less desirable, that the appeal proceed in that manner. Had this been a case in which the petitioner sought to argue that there were exceptional or particular circumstances justifying a departure from a norm of utilising the avenue of appeal afforded by Section 37 of the 1996 Act, I would have considered the general undesirability of proceeding in such an anomalous manner to be a relevant factor which fell to be taken into account in deciding whether the petitioner should be afforded the remedy of judicial review.

[35] In all the circumstances, I will, accordingly, sustain the respondent's first plea in law and dismiss the petition.