United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 720_93_0903

Appeal No. EAT/720/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9 March 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS E HART

MISS C HOLROYD

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MR L CHAUDHRY          APPELLANT

HAMPSHIRE COUNTY COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR S MUNASINGHE

(Of Counsel)

Johns & Saggar

193-195 Kentish Town Road

London

NW5 2JU

For the Respondents MR A LYNCH

(Of Counsel)

The Castle

Winchester

Hampshire

SO23 8UD


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from the decision of the Industrial Tribunal, held at Southampton on 1 March 1993. For reasons notified to the parties on 9 March, the Tribunal unanimously decided that the Respondent, Hampshire County Council, had not discriminated against the Applicant, Mr L Chaudhry, on racial grounds. His application was dismissed. He appealed by a Notice of Appeal, served on 20 April 1993. He prepared it himself. The grounds of appeal included a number of allegations of fraud, tampering with documents, withholding information and other serious matters.

The grounds of appeal were later added to by way of amendment. It is not necessary to go into the details, save to refer to the self-evidently serious and, we think, scandalous nature of the allegations against the Respondent. Today the matter came for hearing. Mr Munasinghe appeared for Mr Chaudhry and explained his position; that he had only accepted instructions yesterday, to appear for Mr Chaudhry on the appeal; and for the limited purpose of making an application for leave to amend the Notice of Appeal, to add two grounds. He made it clear that he would not be arguing the appeal on any of the existing grounds. He explained that, if leave was refused, he would withdraw from the case. If leave was granted, he would only argue on the two grounds for which he sought leave to amend.

The intention as explained by Mr Munasinghe, was that Mr Chaudhry wished to argue the other points himself. After hearing argument from Mr Munasinghe on the application for leave to amend, and from Mr Lynch as to why he opposed it, we retired and returned, after discussion, to explain to Mr Munasinghe, that, in our view, it was impermissible for Mr Chaudhry to appear, both by Counsel to argue points raised by the application for leave to amend, by himself to argue the other points. This is an abuse of the appeal procedure. We said that we would not entertain the appeal, as long as this position was maintained. We explained the options open to Mr Chaudhry were, (1) either to drop his application for leave to amend and argue himself his initial grounds of appeal or (2) if he wished Mr Munasinghe to represent him, he must drop the allegations which he wished to argue himself. Mr Munasinghe declined, in our view quite properly, to associate himself with those allegations.

The upshot of the position was that, after a further adjournment, during which Mr Munasinghe explained the position to his client and gave him advice, we were informed that Mr Chaudhry no longer wished to instruct Counsel to pursue the application for leave to amend. That was withdrawn. He said he wished to argue his own case. Before doing so, he explained that he would consider withdrawing the appeal, if he was shown the originals of four Job Applications, referred to in the proceedings as A, B, C and D. We adjourned for 1/2 hour, to enable him to see these. These were produced by Mr Lynch for the Hampshire County Council, on the basis that Mr Chaudhry would not look at the names on the Application Forms. These documents were shown to him solely for the purposes of the appeal, to enable him to decide whether he wished to pursue the appeal or to withdraw it. (I should mention Mr Chaudhry accepted that that was the limited basis on which he was being shown those documents, and he promised that he would not look at the names.)

After the adjournment of 1/2 hour, we returned. Mr Chaudhry informed us that he now wished to withdraw the appeal. The consequence is that the appeal is dismissed. His ground for withdrawing the appeal is that he is now satisfied that the papers he has seen are correct and in order. He went on to explain why he had pressed to see these documents. We then heard an application for costs by Mr Lynch. The application is made under Rule 34 of the Employment Appeal Tribunal Rules 1993. That gives jurisdiction to the Tribunal to order a party at fault to pay to the other party, the whole or such part of the costs where it appears to the Tribunal that the appeal was unnecessary, improper or vexatious, or that there has been unreasonable delay, or other unreasonable conduct, in bringing or conducting the proceedings.

The Tribunal can assess the costs, or order them to be assessed by the Taxing Officer. Mr Lynch explained the basis of the application. He relied heavily upon the fact that the matters Mr Chaudhry had complained about and had continuing suspicions about had always been clear to him. (That relates to the point taken in connection with the advertisements and forms for the 1990 and 1992 posts.) He had been shown copies of page 4 of the forms. They show the signatures and dates of the Job Application forms. He had, from the beginning of the appeal, made improper and groundless allegations of a most serious nature and had persisted in them right down until today.

We would add to Mr Lynch's submissions our own view that the conduct of the appeal today, save insofar as it was conducted by Mr Munasinghe, was unreasonable. It was unreasonable for Mr Chaudhry to seek to argue the appeal in part by Counsel and as to the part with which Counsel would not associate himself by his own representations. Mr Chaudhry said that he should not be ordered to pay the costs. He said he had asked for information, which had not been provided to him until this morning. He relied particularly on the fact that the President of the Employment Appeal Tribunal, who was in post at the time when this matter came up for preliminary consideration, allowed the matter to proceed to a full hearing. He argued that there must have been something in it that deserved a full hearing. It was reasonable for him to pursue it.

We are not able to agree. We have seen the full picture. We have seen the detailed submissions in the Skeleton Argument submitted by Mr Lynch, both on the substance of the appeal and on the application for leave. We have had the benefit of a Skeleton Argument from Mr Munasinghe, on the limited application for leave to amend. In our view, this is a case where costs should be ordered. It is not simply a case where the appeal is unsuccessful. Mr Chaudhry has faced reality and withdrawn his appeal, so that it is dismissed. It was improper for him and vexatious to make allegations against the Council, in relation to the conduct of the matter before the Industrial Tribunal. There was no evidence produced to support any of the allegations. It was unreasonable for Mr Chaudhry to bring this appeal. It was unreasonable conduct on his part, right down until the hearing of this appeal, at a late stage this morning. He only faced reality when at 12.55 p.m. he told us that he was withdrawing the apppeal. This appeal never stood a hope of succeeding. It should never have been brought. We will order Mr Chaudhry to pay the Council's costs, to be assessed by the Taxing Officer.