United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MR R LEWIS (Representative) Messrs Bindman & Partners Solicitors 275 Grays Inn Road London WC1X 8QF


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal by Dr Adoko ["the appellant"] from a tribunal sitting at London South which, by a unanimous decision promulgated on 19 December 1996, struck out the appellant's originating application on the grounds that it was frivolous, having no prospect of success. By a unanimous decision promulgated on 4 June 1997 the tribunal ordered the appellant to pay the Law Society's costs to be taxed on the standard basis.

The appellant is a barrister and was called to the English Bar in 1960. Having pursued a distinguished legal career in Africa the appellant returned to legal practice in England in 1989. In February 1991 he applied to the Law Society to be re-admitted as a solicitor. The transfer from the Bar to the solicitor's profession is governed by the Qualified Lawyers Transfer Regulations 1990 and the power to make decisions under the transfer regulations was vested with the Transfer Casework Committee. Rule 5 of the Regulations states the following:

"(1) A person seeking to establish eligibility under these Regulations to apply for admission must provide such evidence as the Society my require that the applicant:

(a) is a person to whom any of Regulations 6 to 15 applies [qualifications required for a transfer]; and

(b) is suitable to be admitted as a solicitor."

Under the Solicitors' Admission Regulations 1994 an applicant will be admitted to the Law Society if the Society is satisfied under rule 6(i)(b) "as to the character and suitability of the applicant to be a solicitor?"

The Law Society considered that the appellant had not had enough experience of legal practice in England and required him to take an examination in professional conduct. He took the examination twice in 1992 but failed at both attempts and the Law Society refused to exempt him from the requirement of passing that examination at that time.

On 14 December 1993 he presented a complaint to an Industrial Tribunal alleging indirect discrimination. It was his case that the requirement of eight years experience in the practice of law in England discriminated against persons from other countries. [The indirect discrimination claim.]

On 19 May 1994 there was a directions hearing, at which a number of preliminary issues were identified. The orders made, and agreements reached, were recorded in a letter to the appellant dated 31 May 1994. In relation to discovery, the Chairman ordered the Law Society to provide the following documents to the appellant within 28 days of 19 May 1994:

"(1) Details of all applications for exemption under paragraph 6 of the Regulations from 1 January 1991 19 May 1994;

(2) Details of all applications for exemption from Tanzania and Uganda between 1 January 1991 and 19 May 1994;

(3) Details of all applications for a waiver granted under paragraph 11(3) of the Regulations between 1 January 1991 and 19 May 1994;

(4) Details of all barristers granted an exemption in accordance with the Guidelines on the administration of paragraph 6 of the Regulations between 1 January 1991 and 19 May 1994;

(5) Copies of those minutes of the Transfer Case Work Committee, the Review Case Work Committee and the Training Committee dealing with transfer applications between the 1 January 1991 and 19 May 1994;

(6) Copies of all documents supporting such applications;

(7) Copies of regulations and syllabuses for the qualification of lawyers in countries which have been included in any amendment to the Regulations or which are to be included in future amendments."

At the conclusion of the list the letter stated that

"In order to preserve confidentiality such details and documents may be edited so as to disguise the identities of the persons involved."

Pursuant to that order, the Law Society disclosed in excess of 5,000 documents, including all the application forms of lawyers relating to the Qualified Lawyers' Transfer Test. Officers of the Law Society had blanked out the names and details of the individuals. However, the appellant found a way to see through the blanked out passages and read them.

On 28 September 1994, the tribunal wrote to the appellant concerning the use of the documents given in discovery and the issue of confidentiality. The tribunal referred to a document which the appellant had sent to the President of the Law Society and to the Master of the Rolls which contained the names and details of candidates. The letter went on to state:

"The Chairman also notes that you continue to quote the names of particular persons the treatment of whom you wish to compare yourself with.

The Chairman reiterates her order for the last time. The names of the comparators are not to be revealed, even for the purposes of this litigation?More importantly, the information provided is not to be used for any other purpose other than these proceedings."

On 17 October 1994 the tribunal wrote to the appellant's representatives concerning the issue of confidentiality. The appellant's argument that the disclosed documents revealed the commission of a criminal offence was noted. The letter again reiterated the Chairman's position that discovery was granted in relation solely to his complaint and on account were identities to be disclosed. The letter went on to state:

"If he [the appellant] disliked that condition of discovery it was for him to appeal against her imposition of the condition; he did not. The Chairman has therefore asked me to inform you that if there are any more examples of a disregard for the conditions which she has imposed and for her rulings, she will consider striking out your client's originating application, on the ground of vexatious behaviour."

The originating application was amended a week before the hearing to include another allegation of indirect discrimination in relation to the pass mark required.

The hearing took place over 3 days between 31 October and 2 November 1994. By a decision promulgated on 10 February 1995 the tribunal found that the Law Society had unlawfully discriminated against the appellant contrary to ss.1(1)(b) and 12(1) of the Race Relations Act 1976. They went on to hold that the discrimination was unintentional, and, applying s. 57(3), no compensation was awarded. The tribunal concluded that the appellant had breached the tribunal's order on confidentiality. It stated that "[i]t is clear law that documents discovered in the course of proceedings may be used only for the purpose of those proceedings and the Tribunal did not accept the Applicant's ignorance with regard to the use of these documents." For those reasons the tribunal held that the appellant's conduct of the proceedings had been unreasonable and costs were awarded against him for the extra work caused to the Law Society in defending the allegation of indirect discrimination in relation to the pass mark.

On 22 February 1995 the appellant and Emmanuel Oteng, barrister, convened a press conference to publicise a document entitled "Has the Law Society committed these offences?" Copies had already been distributed, and shortly before the meeting started a process server instructed by the Law Society's solicitors served on the appellant a letter from the solicitors dated 22 February 1995. The letter warned him that publication of the document would be a "severe and gross contempt of Orders for Discovery" made by the tribunal. The letter reminded the appellant that he had already been warned about the rules on using discovered documents outside of the proceedings to which the documents related and that those rules continued even after the conclusion of the relevant proceedings. The appellant was also informed that the document was a "flagrant defamation" of those who had represented the Law Society at the tribunal hearing on 31 October 1994. The letter concluded by saying

"This letter is to put you upon notice that should you continue with these matters you may render yourself liable to legal proceedings."

The appellant continued with the meeting and the document was published in his name. It claimed to be a plea for a public enquiry into abuses of power, corruption and unlawful race discrimination perpetrated by the Law Society. The document complained that the appellant had been subjected to less favourable treatment by comparison with white members of the Bar, and, in support, the names and details of a number of lawyers were set out. The information about the lawyers against whom the appellant compared himself was taken from the discovery given by the Law Society. The document also contained personal criticisms of John Randall, the Director of Professional Standards and Developments, Ann Cole, Robert Saunders, Robin Lewis and Lord Lester QC and alleged that they were party to the corruption and discrimination at the Law Society.

On 24 February 1995 the solicitors on behalf of the Law Society wrote to the Assistant Secretary of the South London Industrial Tribunal about the publication of the appellant's document. The solicitors stated that the tribunal Chairman had written to the parties on 19 August 1994 warning that any information obtained in discovery was confidential and if any such information should go beyond the parties and their representatives she would "take steps to institute contempt proceedings against the offending party." In the light of that indication the letter enquired as to whether the tribunal Chairman wished to consider instituting such proceedings.

The Regional Secretary of the Tribunals replied by a letter dated 6 April 1995. He stated that the document appeared to be a breach of the Chairman's direction but the tribunal did not have the jurisdiction to deal with contempt matters themselves. Accordingly, the letter gave the following advice:

"It must be for the parties to decide whether they wish to commence such proceedings, bearing in mind their own interests. But it would be entirely understandable if the Law Society chose to bring proceedings in the present circumstances."

On 3 May 1995 the Law Society's solicitors wrote to the appellant requesting an undertaking that he would desist from distributing the published document and would not publish any further details taken from the discovery. He was warned that, if no undertaking was forthcoming, an application would be made to the Divisional Court in respect of the contempt. On 17 May 1995, Anne Coles, on behalf of the Law Society wrote to David James, the Secretary of the Professional Conduct Committee at the Bar Council. She asked that the Bar Council look into the action of the appellant and the two barristers who assisted him and consider whether any action should be brought against them.

The Bar Council, in consequence of this approach, preferred charges against the appellant.

The appellant again applied to be admitted to the Law Society. At a Transfer Casework Committee meeting on 13 December 1995 it was agreed that the appellant would be exempt from re-taking the professional conduct paper. On 7 February 1996 the Law Society wrote to the appellant with regard to his application for admission, informing him that it would be deferred. The letter stated that admission depended upon the Law Society being satisfied about the appellant's character and suitability; and that it was appropriate to defer admission until after the adjudication of the charges of gross professional misconduct.

On 16 March 1996 the appellant presented an originating application to the industrial tribunal complaining of victimisation on the grounds of race contrary to s.2(1). [The victimisation claim.] The tribunal held a preliminary hearing on 28 November and 16 December 1996 to determine whether the claim should be struck out. At the outset of the hearing, the appellant was represented by Mr Oteng. When the Chairman questioned whether it was appropriate for Mr Oteng to represent the appellant, given his involvement in the publication of the offending document, Mr Oteng withdrew and the appellant represented himself. The Chairman also refused the appellant's applications for discovery on the basis that they were not necessary for the determination of the current hearing and rejected an application for the Chairman to withdraw from the tribunal.

The tribunal stated that the protected act was the appellant's previous complaint of racial discrimination. The act of victimisation was the Law Society reporting the appellant to the Bar Council and then deferring his application for admission pending their investigation. The appellant argued that the documents were not privileged and in any case he was under a duty to disclose the documents as they revealed criminal offences which had been committed by members of the Law Society. In support of his claims, the appellant presented a document containing 66 allegations against the Law Society members, mainly of fraud and perverting the course of justice

The respondents argued that in accordance with Rule 4(1)(b) to Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, a tribunal could grant discovery in the same way as a County Court under CCR Order 14. Under Order 14 Rule 8(a) it was stated that the undertaking that documents disclosed in discovery would not be used outside of the proceedings ceased when the documents were read or referred to in open court. As the information in the documents was not revealed in open court the appellant was in breach of the undertaking and the Law Society were entitled to complain to the Bar Council about the misconduct and such a complaint was not made on the grounds of race or national origin.

The tribunal made the following findings:

"?we are quite satisfied that the publication of names which could only be revealed by the removal of the blanking out processes on documents supplied to [the appellant] by an order of the Tribunal was in breach of a professional duty.

?..

24. He therefore had no right to breach the confidentiality of the information he had obtained upon discovery and the Law Society cannot for one moment be criticised for reporting this matter to the General Council of the Bar and delaying his application for admittance to the role of solicitors until that matter had been resolved.

25. We are therefore satisfied that there is and can be no evidence of racism in this case upon which any tribunal could make a finding of victimisation. This application is entirely frivolous and is struck out."

A hearing was then convened to decide the issue of costs and the unanimous decision was promulgated on 4 June 1997. At the start of the hearing an application was made on behalf of the appellant that a different tribunal hear the issue of costs but that was rejected on the basis that a tribunal which declares a case to be frivolous should preside over the subsequent costs hearing. Having set out the arguments before them the tribunal made the following finding:

"14. We were quite satisfied that this was a matter for costs. Dr Adoko's conduct during this and the previous case made it clear to us that he had no real belief in the strength of his case and, having been a barrister for more than 30 years, he should have known that this case was little more than mischief making."

Accordingly the tribunal ordered the appellant to pay to the Law Society the whole of its costs of the action to be taxed on the standard scale.

It is against that background in particular that we turn to the arguments which were presented to us in this case. The appellant contended that the actions of the Law Society had been improperly motivated by a desire to further delay his application to be admitted as a solicitor.

The Law Society had threatened the appellant with contempt of court proceedings and with a libel action following his publication of the document containing the blanked out names. The fact that the Law Society had not proceeded with their threat to sue the appellant indicated that they could not controvert the truth of his allegations. Furthermore it was argued that the Law Society's justification for making the complaint to the Bar Council - namely that it was normal practice - was unlawful. Our attention was directed to Sagnata Investments Ltd v Norwich Corporation [1971] 3 WLR 133 in which the Court of Appeal held that an administrative body could only lay down a general policy when making individual decisions if the policy was reasonable, fair and just. It was argued before us that the Law Society's decision to make a complaint to the Bar Council and subsequently defer the appellant's application was manifestly unreasonable and unfair, particularly given that there had been no finding that the appellant had actually breached the tribunal's order.

The appellant argued that the documents were not in any event privileged as he was entitled to publish the information to prevent the furtherance of criminal actions. As the documents showed, white colleagues were exempted from any examinations and were admitted as solicitors, whilst the appellant had to wait 6 years for exemption and was still denied admission by the Law Society's unlawful actions in making the complaint to the Bar Council. In complaining to the Bar Council, the Law Society were attempting to muzzle the appellant's right to free speech. It was further contended that in order to prove the complaint of contempt, the Law Society had allowed the discovered documents to be passed to the Bar Council. The Law Society themselves had therefore committed the same breach of confidentiality but no sanction was brought against them.

A number of specific complaints were made in relation to the conduct of the appellant's victimisation claim and the decisions of the tribunal Chairman. It was submitted that the Chairman erred in refusing the appellant's applications for discovery and had he truly objected to the scope of the documents requested he should have narrowed the scope of the discovery. By rejecting the application for discovery and refusing to consider the appellant's factual evidence in relation to the Law Society's discrimination against him, the tribunal made findings unsupported by fact or evidence. Complaint was also made that the Chairman overruled an earlier decision that the hearing should proceed before a differently constituted tribunal and by unilaterally overturning that decision the Chairman revealed bias, making the tribunal proceedings a nullity. The appellant claimed that he was denied legal representation by the tribunal Chairman who unfairly objected to Mr Oteng acting as counsel. The order for costs was argued to be unfair as there had been no indication by the tribunal at the striking out hearing that there would be an issue as to costs and moreover at the costs hearing the tribunal Chairman refused to consider the appellant's affidavit on the issue.

The Law Society was represented by Mr Lewis, Solicitor. His principal submission was that the Law Society's decision to complain to the Bar Council concerning the actions of the appellant and consequently deferring consideration of his application for admission was one which would have been taken in relation to any barrister who had acted in the manner of the appellant. There could be no unlawful victimisation as the Law Society's decisions were governed not by the appellant's race or previous claims of discrimination but were a standard reaction to an act of gross misconduct committed by a prospective applicant.

Turning to the individual grounds of appeal raised by the appellant the Law Society submitted that the tribunal's power to strike out the appellant's claim as frivolous was an act of discretion which cannot be overturned on appeal unless manifestly unreasonable. The tribunal correctly considered the two stage process in Rule 13(2)(d) of the Regulations and as recently formulated in Ashmore v British Coal Corporation [1990] IRLR 283. It considered whether the claim was so manifestly misconceived that it could have no prospect of success and decided that it was. Having found the claim to be frivolous the tribunal then had a discretion whether or not to strike out the claim. He relied on the following passage from Ashmore, at p.285:

"Whether or not an application should be struck out on this ground [the claim is frivolous] is a matter for the discretion of the tribunal, which can only be challenged on the basis that the tribunal has misdirected itself in law or reached a decision to which no reasonable tribunal could come."

The tribunal followed the correct procedure, so it was argued, and came to a decision which it was entitled to make given the facts and evidence before them.

On the matter of discovery Mr Lewis submitted that the Law Society was entitled to cover up the names and details of the prospective applicants in the discovered documents as the information was confidential. As for the tribunal's decision in the present case to refuse the appellant's application for discovery, they were entitled to limit the extent of discovery to minimise costs as there was a possibility of the matter being struck out.

We consider that the appellant's principal complaints on this appeal are two fold:

(1) the Law Society unlawfully made a complaint to the Bar Council about his behaviour, when there had been no determination on the issue of contempt;

(2) the Law Society's decision to delay his application pending the outcome of the Bar Council's decision was unfair;

and that both decisions were motivated by reason of him having done the protected act [namely, to pursue the indirect discrimination complaint].

As I stated in the judgment following the preliminary hearing of this appeal, the issue is not whether the appellant was entitled to publish the material, but whether the Law Society was acting in an unlawful and discriminatory manner in reporting the appellant to the Bar Council and then deferring his application.

Under rule 13(2)(d) to Schedule 1 of the Regulations, a tribunal may strike out an originating application at any stage of proceedings on the grounds that it is scandalous, frivolous or vexatious. In E.T. Marler Ltd v Robertson [1974] ICR 72 'frivolous' was defined as where the employee knows the claim is bound to fail or is so manifestly misconceived that it can have no prospect of success.

The tribunal was presented with argument from both the appellant and from the Law Society. It concluded that the case had no prospect of success, as the appellant knew or must have realised, and accordingly the case was struck out. On the basis of the material before them we cannot say that the tribunal's decision was perverse or that there had been any misdirection in law. They were entitled to use their discretion to strike out the appellant's claim on the grounds that it was frivolous. Regardless of whether the appellant had committed a contempt of court, it is clear that he abused the discovery process. As an experienced and distinguished advocate, Dr Adoko would have been well aware of his obligations in relation to discovered material. We have some considerable sympathy for him. The rules in force were discriminatory, and the disclosed documents emphasised the disparity in treatment between his case and others who were from a different ethnic origin. The hurt and affront caused by such discrimination is, we think, often underestimated. We recognise that Dr Adoko had been sorely tried, and his behaviour after his case had been found proved perhaps lacked the wisdom and balance he would normally have shown. That said, there cannot really be any excuse for making the names known, however hurt he may have been. In many ways, what happened after the discrimination proceedings represented an uncharacteristic overreaction.

The problem for Dr Adoko is that he gave the Law Society good grounds for referring the matter to the disciplinary authorities of the Bar; it could not seriously be suggested that they were motivated by race when they did so. The Law Society keep confidential records; they were entitled to feel aggrieved by Dr Adoko's breach of duty in relation to the discovery process. They were entitled by law to keep the names of the people on the forms confidential; Dr Adoko had no business in reading through their attempts to cover them up. Having been able to discover the names, Dr Adoko must have known that he was behaving improperly by disclosing them. By doing so, he was acting mischievously. The initial order for discovery stated that that the identities of some persons could be covered up in order to maintain confidentiality. The letter sent by the tribunal on 19 August 1994 specifically warned the parties against the publication of confidential information. The tribunal letter dated 28 September 1994 reiterated the Chairman's order that the names of comparators were not to be revealed. On 17 October 1994 the tribunal again wrote to the appellant's then representatives warning against the publication of any information obtained in discovery. At the first tribunal hearing in 1994 there was specific reference to the appellant's breach of the order of confidentiality, and costs were accordingly awarded against him. Dr Adoko had good warning of his obligations. Had he genuinely been of the view that the iniquity disclosed by the documents justified him in making publication, the only proper course was for him to raise the matter before the Tribunal which made the discovery order, seeking a release from his implied undertaking. In their letter of 17 October 1994, the tribunal, in effect, invited him to do that. In any event, we are sure that Dr Adoko was well aware of his obligations not to 'take the law into his own hands', as he did.

It is clear that the appellant failed to heed many clear warnings from both the tribunal and the Law Society as to his actions and that his actions potentially amounted to professional misconduct.

In those circumstances the tribunal were entitled to reach the conclusion they did.

As to the issue of deferment, the Law Society's rules of admission make it clear that in addition to passing the necessary qualifying examinations, a prospective applicant must be a suitable person to join the profession. The tribunal found that the actions of the appellant in this matter justified a complaint to his regulatory body, the Bar Council. In those circumstances the Law Society were entitled to await the outcome of the Bar Council's investigation before processing the appellant's application. On the evidence presented, the tribunal were left in no doubt that the Law Society would defer the application of any barrister, irrespective of sex or race, where they were currently under investigation by the Bar Council. The tribunal considered the Law Society's arguments and accepted them. We cannot interfere.

The appeal must be dismissed.