United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MISS CHARLOTTE JONES (of Counsel) Mr D Widdowson (Partner) Messrs Bevan Ashford & Co Solicitors 35 Colston Avenue Bristol BS1 4TT


 


JUDGE J HULL QC: This is an appeal to us by Dr John Victor Gosling, who is a Consultant Pathologist, recently retired or dismissed, depending on the facts yet to be found. He was employed by St George's Healthcare NHS Trust in London, first employed by the predecessors of the Respondents on 1 September 1967; and in the same employment thereafter. Throughout he has been a Consultant. He was a Chemical Pathologist until 1991 when he assumed further responsibilities and on 25 November 1995 he achieved the age of 65, that was his 65th birthday and his employment came to an end, whether by dismissal or resignation on that date.

He then applied to the Industrial Tribunal complaining of breach of contract, unfair dismissal, refusal to reinstate him and failure to provide particulars and saying that his normal retiring age was to be extended in that employment and was such that he should continue until the end of the academic year and that meant, putting it at its highest, until I think July 1996 or thereabouts (these details do not matter very much).

There was a preliminary hearing in the Industrial Tribunal and that resulted in a conclusion unfavourable to Dr Gosling. Among the matters which were decided was that his normal retiring age was 65 and that he had, in fact, retired on his birthday and not been dismissed. Dr Gosling makes detailed and well researched (if I may put it like that) complaints concerning that preliminary hearing, and it is against that that he appeals to us.

Dr Gosling wishes to take points which are points of technicality. He has objected to us, unsuccessfully, against the late filing of the Respondent's Answer on his appeal to us. He has complied punctiliously with our rules in furthering his appeal. He has filed his Notice of Appeal timeously; he has attended a preliminary hearing at which he was successful and was allowed thereafter to amend his Notice of Appeal, which he has done. He had therefore cause to complain that the Answer was late, but nonetheless we overruled him about that, being anxious to get to the point.

He then complained to us that he had received a revised Skeleton Argument last night. I asked in what way this differed from the original Skeleton Argument which I had, I am afraid, assumed (wrongly) was served timeously on him. The original was dated 1 July 1997 and was filed with us in accordance with our Practice Direction, so far as I know 14 days before the hearing, but it was not sent to him. My assumption was incorrect. A decision was taken, which has not been explained or justified to us, not to send the original Skeleton Argument, pending the possibility of amendments or additions to it, to Dr Gosling and therefore, it appears that the revised Skeleton Argument, which is the first Skeleton Argument he had seen, arrived at his house yesterday and he saw it for the first time at 6.00 pm.

It refers, of course, in the normal and proper way, to statutory provisions, to authorities and to a statutory instrument and Dr Gosling, having complied with the rule and put in his Skeleton Argument timeously, complains that he has had no opportunity, having no law library, to look at these authorities and statutory provisions. His own argument is a carefully researched and considered one. He being totally unfamiliar with the law, would wish to consider this Skeleton Argument in conjunction with his own, in a deliberate way, and decide whether he ought to add to his Skeleton Argument. In particular, of course, he needs time for the thought processes which are necessary, much more necessary to a layman perhaps than to a lawyer, in deciding how to meet the arguments against him. Particularly for a layman, that will require reflection, and consideration; he may even wish to take advice, though that is entirely a matter for him.

Now he asks us in those circumstances for an adjournment. We have read all the papers in the case in accordance with our usual custom. It is apparent to us that Dr Gosling has prepared his case meticulously, as I said, not entirely seriously, perhaps too meticulously, in the sense of going into a great deal of detail and technicality. He is fully entitled to. It seems to us, in circumstances where he, being quite unfamiliar with law, has devoted his very best efforts to conducting his appeal impeccably, it is simply reprehensible, indeed, disgraceful that he should be treated in this way.

We, of course, are tempted to say, "Well we can put matters right. We can conduct the case in a robust and straightforward way, as we always try to, and get at the justice of it", but that involves leaving Dr Gosling out of the equation. He wishes to take part in our adjudication and he wishes to be fully heard. It is impossible to say that that is an unreasonable request, it is of the essence of the hearing and it is that which he is, in our judgment, simply prevented from carrying out properly and sensibly by what has happened. We think it an absolutely indefensible way of proceeding against a litigant in person, particularly a person like Dr Gosling, who is so anxious to conduct his appeal impeccably, to serve him with a copy of an amended Skeleton Argument the night before the hearing.

In those circumstances (Dr Gosling being aware that the effect will be to defer the hearing by several months) we feel obliged in justice to accede to his request for an adjournment. We feel that it is hardly, in the circumstances, a matter of discretion at all. We feel compelled and that is the order which we make, expressing, as I say, our deep disapproval of the way in which Dr Gosling has been treated. In those circumstances the adjournment will be granted.

We are minded to deal now with the costs of the adjournment, bearing in mind our view that the Respondents have behaved unreasonably. That is, of course, subject to what you have to say Miss Jones, if you wish to address us on that.

Our view is that the Respondents have behaved unreasonably in the ways which I have tried to identify in our judgment; that all the costs of and occasioned by the adjournment which is requested should be paid by the Respondents, to be taxed if necessary. In due course, if agreement can be reached on the amount of the costs, then that will prevent the need for any taxation and we will give liberty to apply with regard to the order for taxation, so that we can consider the matter if necessary.

It may be Dr Gosling that to prevent this tiresome business of taxation, which involves a good deal of work for the parties, we shall feel that we ought to fix a sum ourselves, but for the moment I hope you can put in your own bill for costs thrown away and obtain agreement about that.

So that is what we propose to do. The costs of and occasioned by the adjournment are to be paid by the Respondents and that will be our order.