United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR D GRIFFITH-JONES QC (of Counsel) Instructed by: Messrs Bond Pearce Solicitors Bristol Bridge House Redcliffe Street Bristol BS1 6BJ


 


SIR CHRISTOPHER BELLAMY QC

1. This matter comes before us today by way of an ex-parte preliminary hearing to determine whether there is a reasonably arguable point of law in the appeal brought by the Appellants, the National Trust, against the Decision of an Employment Tribunal, sitting at Newcastle Upon Tyne, which was sent to the parties on 14 September 2000, and which decided that the Appellants had unlawfully discriminated against the Respondent, Mrs Douglas, contrary to the relevant provisions of the Sex Discrimination Act 1975.
2. The appeal is not concerned at all with the merits of that particular Decision. The sole ground raised in the appeal is whether there was a real danger that the Chairman of the Tribunal was biased against the Appellants and/or that the Appellants were not thereby accorded a fair hearing.
3. The essential submission made on behalf of the Appellants is that the Chairman ought to have disqualified himself from hearing the case by reason of his past dealings with the Appellants, and the circumstances relating thereto.
4. In any event, say the Appellants, the Chairman ought to have disclosed to the parties all the material facts concerning his past dealings with the Appellants which, say the Appellants, he did not do. In any event the Appellants argue that when certain additional facts were drawn to the Chairman's attention, at the end of the first two days of the hearing, he ought, at least at that stage, to have aborted the hearing, and disqualified himself, as the Appellants in fact invited him to do; but he did not.
5. There is no suggestion in this case that the Chairman was in fact biased. That suggestion is expressly disavowed by the Appellants. The suggestion is, however, that in this particular case, the circumstances were such that a fair minded and informed observer would conclude that there was a real possibility, or a real danger that the Chairman was biased. That of course, being the test, in a case such as this, as set out by the Court of Appeal, in the recent case of In re Medicaments and Related Classes of Goods (No 2) [2001] WLR 700, in particular at paragraph 85.
6. So the sole question to be argued on the appeal is whether in the particular circumstances there was any appearance of bias, and as the Medicaments and other decisions indicate, the Court must ascertain all the circumstances and then ask itself the question whether a fair minded and informed observer would consider that there was a real possibility or real danger of bias.
7. It is not appropriate at this stage for us to go into any detail as to the matters upon which the Appellants rely, and we propose to say as little about the facts as possible. Very shortly, what is said to have occurred is that the learned Chairman, in 1995 and early in 1996, was acting for the National Trust in a landlord and tenant matter, which involved recovering possession of one of the National Trust's properties in Northumberland.
8. At a certain point, namely on 19 February 1996, the National Trust's land agent handling that matter, in a letter of that date, informed the Chairman that the Regional Committee had asked him to obtain a second opinion on the matters upon which the Chairman had already advised, although saying in that letter that that was not any reflection upon his or learned Counsel's advice. He was therefore asked to transfer the papers to another firm of solicitors, and in his reply of 21 February 1996, saying that of course he would do so, the learned Chairman did comment that he found the National Trust's decision to proceed to a second legal opinion

"very difficult to accept"

and that letter concludes with the words:

"I must say that I am very disappointed that I am not instructed to take this case to a final conclusion"

9. The papers were then sent to the new firm of solicitors, and those solicitors, having examined the papers, came to the view that certain advice that the Chairman had given at an earlier stage in the matter, could have been open to question. They therefore, in a letter of 15 August 1996, asked him for the reason why he gave that advice, and whether he would be willing to give evidence for the Trust in the possession proceedings, should that be necessary.
10. The issue apparently was whether a demand for rent which had, so it is said, been issued on the Chairman's advice, could have given rise to a situation in which the tenant of the Trust property had paid the rent and thus deprived the Trust of the possibility of obtaining possession.
11. A considerable number of chasing letters then follow, and the Chairman, by a letter of 21 October 1996, made some short comments on the requests that had been made to him, but concluded that unless there was some specific claim by the tenant of the property in question, he could not really comment any further.
12. Further questions were then asked by the new solicitors, or rather the new solicitors continued to ask the questions that they had previously asked, and there were further chasing letters that take the matter through to 10 June 1997, where in a letter, the learned Chairman indicates that he has only been asked hypothetical questions which he is not prepared to answer, and that although he has no objection to attending as a witness, he would like to know on what basis the evidence should be given.
13. The correspondence does not continue long after June 1997 because shortly after that, in fact, the proceedings for possession in question were compromised, and the point that had been worrying the new solicitors was never in fact raised in those proceedings and therefore the issue became, in effect, an issue that was no longer live after mid-1997.
14. The Appellants, however, argue that that exchange might have led a reasonable observer, or at least there is a real possibility that a reasonable observer might think that such an exchange had left the Chairman with at least some animus towards the National Trust, in view of the circumstances which his retainer had been terminated, and the subsequent suggestion that they, the National Trust, had been poorly served by his advice, and that his advice may have been wrong, and they support that suggestion by referring to the tone of the correspondence and the Chairman's reluctance, so the Appellants say, to explain in detail what his advice had been.
15. The Appellants also refer to the affidavit that has been sworn in this matter by Ms Tyler, who appeared for them at the hearing in question and to the Chairman's own comments which the Chairman makes in response to that letter, and they argue that the Chairman's own explanation in his comments of 1 February 2001 lend, arguably, some support to the suggestion that the Chairman himself may have had some residual feelings about the matter towards the National Trust, which would have made it inappropriate for him to be sitting on this particular Tribunal.
16. We express no view whatsoever about those facts, or indeed about the merits of this appeal. However, in the light of the guidance now given by the Court of Appeal in the Medicaments case to which I have already referred, we consider that there is an arguable point of law on this appeal, as set out in the terms of the Notice of Appeal, concerning whether there was a real danger of apparent bias in this particular case, and that accordingly this case should go forward to a full hearing.

The Respondent seeks disclosure of any work done by the Chairman for the Appellants. I think what we will say is the parties are simply invited to agree what the position is, as regards any further work or other work done by the Chairman for the National Trust that could be relevant to these issues, and in default of any agreement, they are welcome to apply for any direction by this Tribunal that may be appropriate.