United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J GOUDIE QC MR T RESTRICK (of Counsel) Mr T J Sharpe (Solicitor) Messrs Gregory Rowcliffe & Milners Solicitors 1 Bedford Row London WC1R 4BZ
For the Respondent	MR R ALLEN QC MR S ATKAR Litigation Officer Commission for Racial Equality 3rd Floor Lancaster House 67 Newhall Street Birmingham B3 1NA


 


MR JUSTICE LINDSAY: We were to have heard before us today, as a full and substantive appeal, the case of Tom Sawyer and all other members of the Labour Party, against Mr R Ahsan.

In the ordinary way this matter came before the Employment Appeal Tribunal as a preliminary hearing and it was the Appellants, the members of the Labour Party, including Tom Sawyer, who would have, of course, attended as prospective Appellants at that hearing. They sought, and obtained, certain directions. In the ordinary way (although this is not in our papers, we have no reason to think the practice was otherwise) the prospective Respondent's side, Mr Ahsan's side, would have been invited to fill in and supply to the EAT the Respondent's form as to directions to be given at the preliminary hearing.

There was no Respondent's form that suggested that it would be improper or inconvenient that any member of the Labour Party should sit on the appeal, or, indeed, that no member of any political party should sit upon the appeal, nor any indication that objection would be taken on such a score.

So at that stage Mr Ahsan's advisers missed an opportunity to draw to the attention of the EAT that there were misgivings, or likely to be misgivings, in that area. In fact, there was a subsequent application by Mr Ahsan's side to the Registrar, by letter in January of this year and again, although we have not seen the letter, I think we can safely take it that no objection was raised nor was any possibility of a further future objection raised in the letter because certainly no record of any such objection survives.

The matter therefore went forward for listing and was listed and amongst the three of us today is Mr Jacques, a member of the Labour Party. Some little while ago (I am not quite sure what day it was, but perhaps more than a week ago) Mr Jacques rang the EAT and indicated to them that, whereas he was quite comfortable with being a member of the panel of three, he was a member of the Labour Party. In that way it was drawn to the attention of the Listing Office and, indeed, later, to my attention. Had it crossed my mind that objection would, in fact, be raised at today's hearing I would have done something earlier. It did not cross my mind, unfortunately, that the theoretical possibility of objection would in fact lead to an actual objection.

As we sat at 11.00 am, the first business of the day was my announcement to Mr Goudie, as he got up to open the case, that Mr Jacques was, indeed, a member of the Labour Party. To our surprise Mr Allen QC, on behalf of Mr Ahsan, on the instructions of the Commission for Racial Equality, took objection, or at least wished for time, in the first place, to consider whether an objection should be raised and it transpired that an objection was made and we felt sufficiently uncomfortable with the case that, without giving any formal reasons for exactly why we acceded to the application, we thought it right that we should accede to the application and accordingly, the three of us recused ourselves, at any rate in relation to this particular constitution on this particular day. But we did see that it was likely that perhaps literally thousands of pounds would have been thrown away by the fact that the objection was raised only on the day.

Mr Allen has a powerful argument, however, that costs should not be visited upon the CRE or his client, Mr Ahsan, and he argues vigorously that, whereas it was right expressly to have taken the point, as it seems it was taken, before the Employment Tribunal, warning the ET in advance that objection might be taken if the Tribunal at that level included any member of the Labour Party, that here in the (as he would have it) exalted realms of the EAT, it should have been mother's milk (so to speak) that where there was a case that said, amongst the parties, "on behalf of all other members of the Labour Party", that it could not be right to have, amongst the panel, a member of that party. That member would be inescapably a judge in his own cause and, on Mr Ahsan's side of the case, it was thought self-evident that the Tribunal here would not include a member of the Labour Party.

It is exceptionally unfortunate that that point was not drawn to the attention of the EAT, even if it was self-evident, and whilst I can see some force in that argument, it does not by any means follow that objection will, in fact, be taken on such a ground. Mr Jacques is a party in a quite different sense from the usual sense, in which someone has chosen to be an active party to proceedings. It is only in the very technical sense of representation - where the case is described as "Tom Sawyer sued on his own behalf and on behalf of all other members of the Labour Party" - that Mr Jacques comes to be a party. However, we do recognise that there is considerable force in the argument which Mr Allen raises. We are very loathe to pass the blame on, as wholly as Mr Allen would wish, to the Listing Office, or indeed, to me as a person who knew that Mr Jacques was a member of the Labour Party. It does seem to us that, if objection of this character is to be taken in the future, it behoves a respondent or appellant clearly to draw to the attention of the EAT not only that the ability technically to object exists but also, if it is the case that the objection will in fact be mounted, to say so. Because it was not indicated that the objection would, in fact, be mounted, parties have arrived here today expecting a hearing to go ahead and the hearing will not now go ahead and costs have been thrown away.

We have found it not easy to exonerate the Commission for Racial Equality and their advisers for not making it quite clear to the EAT that, first of all, there was an ability technically to object and secondly, that the technical objection would, in fact, be raised. But for all that, we do not feel able to pass any burden in costs on to the Commission or to Mr Ahsan and accordingly, we make no order as to costs.