United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondents	MISS J TRACY-FORSTER (of Counsel) Messrs Eversheds Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL


 


JUDGE PETER CLARK: This is an appeal by Mr Fifer against a decision of a Chairman, Mr J Cole, sitting alone, on 15th August 1997, dismissing his complaint of unfair dismissal and racial discrimination under Rule 13(2)(e) of the Employment Tribunals Rules of Procedure 1993, that is, a strike out order on the grounds that the proceedings were conducted in a manner which was vexatious.

The case has a considerable history. We shall not relate it in detail for the purpose of this judgment.

Suffice to say, the matter came on for an ex parte preliminary hearing before a division of this tribunal presided by Morison P, on 27th March 1998. On that occasion Mr Fifer was represented by a solicitor under the Employment Law Appeals Advice Scheme. The directions given on that day were that the appeal be adjourned so that both parties could file affidavit evidence giving an account of the events which took place at the Employment Tribunal hearing below, and for the Chairman to provide his comments on those affidavits. Those steps were duly taken.

We are told that the matter was re-listed for an inter partes preliminary hearing on the President's direction on a date in September 1998. At the last moment the appellant applied for an adjournment of that hearing on the basis that he had or was about to receive a Legal Aid Certificate to provide for legal representation in these appeal proceedings.

The matter has been re-listed for hearing before us today, again on an inter partes basis. Mr Fifer appears in person. The respondent is represented by solicitor and Counsel.

Mr Fifer has applied for a further adjournment. The basis of his application is, on his account, that although he was told by the Legal Aid authorities that he had Legal Aid for the purpose of these proceedings no certificate has been issued, he says due to errors on the part of the Law Society staff. On the other hand, Miss Tracy-Forster tells us, on instructions, that her solicitor spoke to a representative of the Law Society on 23rd April 1999, and was told that the appellant' application for Legal Aid was unsuccessful and that he had pursued an appeal which, in turn, was unsuccessful.

We are not in a position to finally resolve that factual dispute.

What is however clear is that on the last occasion an indication was given to Mr Fifer by the President that it was a case in which he ought to obtain legal representation. No doubt in giving the direction for an inter partes preliminary hearing the President had in mind that Legal Aid would be granted. There is no certificate in force. The result of this is that Mr Fifer has made attempts to obtain alternative representation. First, through the Free Representation Unit, that failed. Secondly, again through the ELAAS pro bono scheme. He has been informed, and we understand this to be the position, that ELAAS cannot provide representation at an inter partes hearing. He is therefore left in the position of appearing in person before us today.

We bear in mind the history of this matter and the powerful submission by Miss Tracy-Forster, that this is a publicly funded local authority respondent that has been put to considerable expense already in conducting this case, and that it would be wrong to allow a further adjournment. She submits that this is all part of a picture of vexatiousness which led the Employment Tribunal Chairman to strike out the claim in the first place. On the other hand we appreciate the difficulty which Mr Fifer finds himself in today, in that he is not eligible for legal assistance under the ELAAS scheme. There is no certainty as to the true Legal Aid position and having considered the papers in this case, we are unable to say that this is a wholly hopeless appeal.

In these circumstances we have concluded, not without hesitation, that the justice of the matter requires that we grant the application for an adjournment; direct the case be listed as an ex parte preliminary hearing. I shall reserve the case to myself, although not necessarily sitting with the same lay members. The hearing to be listed as soon as practicable on a day when ELAAS are in attendance. If at that hearing it appears that the case is arguable it will proceed to a full inter partes hearing and it may be that in those circumstances that the appellant will pass the Legal Aid merits test. If, on the other hand, the conclusions is reached that the appeal raises no arguable point of law, it will be dismissed at that stage and the respondent will not be put to further expense.

JUDGE PETER CLARK: Miss Tracy-Forster has made an application for costs in this matter under Rule 34(1) of the EAT Rules 1993. She submits that the abortive hearing on 4th September 1998, for which the respondent had to prepare and today's adjourned hearing, at which the respondent is represented, were expenses unnecessarily incurred and that that expense ought to be put at the door of the appellant. At any rate, a nominal order for costs ought to be made against him, bearing in mind his financial circumstances.

We have considered that application and we have some sympathy with it. On the other hand, we bear in mind that the appellant is currently living on incapacity benefit and a pension from the respondents, and tells us that he has considerable debts. We accept his submission that he is not legally trained and believed that letters which he wrote to the EAT Secretariat would be copied to the respondent. As indicated in our earlier judgment, we are unable to reach a final view as to the Legal Aid position. Bearing these matters in mind, in the exercise of our discretion, we do not think that this is a proper case in which to make an order for costs.