United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D BERKLEY QC MR W PANTON (Of Counsel) Instructed by: Commission for Racial Equality Maybrook House, 5th Floor 40 Blackfriars Street Manchester M3 2EG
For the 1st and 2nd Respondents For the 5th Respondent	MISS M CARSS-FRISK QC MISS J COLLIER (Of Counsel) Instructed by: Office of The Solicitor Department of Social Security & Health New Court, 48 Carey Street London WC2A 2LS MISS T GILL (Of Counsel) Instructed by: Messrs Paisner & Co Solicitors Bouverie House 154 Fleet Street London EC4A 2JD


 


MR JUSTICE LINDSAY (PRESIDENT)

1. I have had before me an application that arises in unfortunate and unusual circumstances. The circumstances are this. Tomorrow there is listed an appeal to begin, one which is expected to take some four days, between Mr Dilip Malkan as Applicant and four Respondents, First Respondent NHS Executive West Midlands; Second, The Post Graduate Dean; the Third Respondent had dropped out; Fourth, The Department of Health; Fifth, The Senate of Surgery of Great Britain.
2. The appeal has been listed for many months. I think it was fixed for a hearing tomorrow in October 2001. At a very late stage - and I have to explain the chronology - Mr Malkan has discovered what he claims to be a significant conflict on the part of Miss Gill, who was expecting to appear for the Senate as from tomorrow. The position transpires to be that some long time ago, in 1995, Miss Gill advised Mr Malkan in a quite different matter. She was instructed by the British Medical Association and advised Mr Malkan in an Employment Tribunal case that he was then pursuing against the West Midlands Regional Health Authority.
3. Mr Malkan forgot the identity of the Counsel who had advised him in conference back on that earlier occasion and so, indeed, had Miss Gill forgotten that she had advised Mr Malkan. It is perfectly understandable certainly that Miss Gill should forget, perhaps less understandable that Mr Malkan forgot because, no doubt, he has had fewer conferences than Miss Gill has had in the intervening years but both forgot that Miss Gill had earlier had a role acting for Mr Malkan and that currently Miss Gill had a role acting against him.
4. However, something triggered Mr Malkan's memory. It was the taking of advice in yet other proceedings and in April or May 2001 Mr Malkan recollected that Miss Gill, who was listed to act against him, was the very same Counsel who had earlier acted for him. He raised it with Mr Lawanson at the CRE, the CRE presumably being interested either by way of supporting his claim or at any rate giving advice in connection with it. Mr Malkan was sufficiently interested to look at the Bar Councils Website, with a view to finding out precisely what rules the Bar had in relation to this kind of conflict. One might have expected that he would have done something a little further in April or May 2001, for example in raising it with Miss Gill's solicitors or with Miss Gill herself or writing to the Bar Council on the subject back in April or May 2001.
5. However, it seems he did nothing at all on the point until April 2002 when he wrote to the Bar Council making a formal complaint. The complaint of 16 April 2002 sent to the Bar Council was, unfortunately, not sent either to the Senate's solicitors or to Miss Gill. The first that Miss Gill knew about the matter was on her receiving a fax that had been sent to her instructing solicitors by the CRE. The fax appears to be dated 3 May 2002. There may a dispute as to precisely when it was sent and precisely when it was received by Messrs Paisner & Co who were the Senate's solicitors. Miss Gill did not actually see it until 15 May. The letter says this:

"We write pursuant to our client's instructions regarding your instruction of Tess Gill of Counsel to appear on behalf of your client in this matter. It appears that Tess Gill then instructed by the British Medical Association advised Mr Malkan in an Employment Tribunal matter he was pursuing against the West Midlands Regional Regional Authority case No such and such. If our assumption that Tess Gill has already considered the professional prohibity of advising and appearing on behalf of your client given the above is incorrect it may be appropriate that consideration was undertaken. If you have any queries (and one can see that in view of the grammar there might be queries) please do not hesitate to refer back to ourselves.

Richard Lawanson

Principal Litigation Officer

CRE"

6. Mr Barclay QC who, with Mr Panton, appears for Mr Malkan today says that on receipt of that letter it was self evident or should have been to Miss Gill and to her solicitors and perhaps to her client that she would have to withdraw from the case on behalf of the Senate. I cannot share that view. It merely indicates that she had at an earlier stage advised Mr Malkan in a quite different case. There is no suggestion other than that she should look into the professional propriety of continuing to act for the Senate. It gives so little detail that it seems to do no more than properly to invite consideration.
7. The history thereafter is that Miss Gill, having received a copy of this letter or at any rate having it explained to her, took the view that she had no recollection at all of the earlier litigation or earlier advice in which she had, it was said, advised Mr Malkan and took the view that she should therefore continue to act for the Senate. That was indicated to the CRE by a letter of 20 May 2002. The letter says:

"Miss Gill has asked me to reply to your letter of 3 May to say that since its receipt she has considered the probity of continuing to act in this matter and is of the view that there is no good reason she should not do so. She has no recollection of having advised Mr Malkan on a previous occasion. On receiving your letter which was the first intimation by him that any advice had been given she asked her Clerk to check the records. The records showed she advised Mr Malkan in conference in April 1995 on instruction from BMA in connection with a claim against West Midlands Healthcare. No other details were available. Your client did not raise this matter during the Tribunal proceedings. The Appeal is restricted to issues of law. She therefore intends to represent the Senate in the forthcoming appeal. However, should you or your client consider there is a reason why she should not do so she will consider any matter you choose to put forward."

8. And that led to communications direct between Miss Gill and Mr Barclay and ultimately, on 23 May, Mr Barclay wrote (and, I assume, faxed) to Miss Gill a note of that date that indicated that Mr Barclay had been through the relevant papers in some detail and had formed the view that there really was a conflict sufficient to require Miss Gill to withdraw from representation of the Senate. He says in that note:

"It is perfectly plain from those documents that you (that is Miss Gill)

a You provided significant legal services to Mr Malkan in the form of advice;

b. You were provided with privileged instructions

c. Your services and the instructions related substantially to the same subject matter as forms the legal and factual questions raised on the forthcoming hearing of the Appeal

d. At the conference you elicited information from Mr Malkan

The combination of those facts in my view makes it entirely inappropriate for you to appear as an advocate to resist Mr Malkan's claims. I do not regard the matter as borderline or simply an exercise of your own judgment."

9. Very properly, on receiving that, Miss Gill took the view that it was not for her to examine into her recollection afresh or anything on those lines but that she truly had to withdraw in the interests of both professional propriety and, indeed, the interest of her client. Accordingly an application was made at the end of last week for the case (at any rate as between Malkan and the Senate) to be adjourned. That is the application which I heard earlier and on which I ruled that there should be a general adjournment of the case as between Malkan and the Senate. But I have to bear in mind Rule 34 of the Employment Appeal Tribunal Rules 1993 of which Sub Rule 1 says:

"Where it appears to the Appeal Tribunal that any proceedings were unnecessary improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings."

10. What has troubled me here is the long gap between Mr Malkan first having his recollection sufficiently jolted to recollect that it was Miss Gill who had advised him on the earlier occasion and yet was the Counsel who was due to continue the case on the part of the Senate against him and his doing something about it. His recollection was jolted back in April or May 2001 and, as I mentioned earlier, he actually raised the subject with the relevant officer at the CRE and he looked at the Bar Councils Website. Yet it seems to me that he then did nothing or certainly nothing sufficient between then and the later dates in April 2002. If Mr Malkan had taken adequate steps earlier the conflict could have been looked at in more detail much much earlier and, if matters had then taken the same course - and there is no reason to suppose they would not have done - then the Senate could have instructed other Counsel in good time so as to be ready to fight the case with alternative and adequately instructed Counsel as from tomorrow. It is, as it seems to me, that long delay that has most caused difficulty with this case. I thus take the view that Mr Malkan has, indeed, acted or conducted himself unreasonably in the course of the conduct of the proceedings and I am therefore minded to make an order against him in costs. Mr Barclay says that it would be right to adjourn the question of costs for more detail to be given, - perhaps on both sides but certainly more detailed information from the Malkan side – but Mr Malkan is, in effect, here today with leading junior Counsel representing him. I have had no fact identified to me or possible fact identified to me as an area which particularly needs further investigation. I am not aware of any particular area where Mr Malkan might significantly improve his position if matters are adjourned and it seems to me not right to involve the Senate in yet further costs simply to have an even more fully informed decision on costs. It seems to me that I have enough information in front of me as things stand.
11. What, then, should be the quantum of costs? Well, it seems to me that the proper course would be to require Mr Malkan to bear all the costs of and incidental to the adjournment and costs thrown away by reason of the adjournment. That is never an easy quantum fully to assess but taxing masters, by whatever title they are now called, have great experience in this area and so what I require is that the costs of and incidental to the adjournment, including today's application, and the costs thrown away by the adjournment should be assessed by the taxing officer and borne by Mr Malkan and paid to the Senate in ordinary course.

[LATER]

12. I have a second application before me in the matter Malkan v The NHS Executive (West Midlands) The Postgraduate Dean, The Department of Health and the Senate of Surgery of Great Britain. This time the application is made by Miss Carss-Frisk QC leading Miss Collier on behalf of all Respondents except the Senate of Surgery. The outcome of the earlier application I had before me was that the case as between Malkan and the Senate of Surgery has been adjourned generally but Miss Carss-Frisk argues that that is no good reason for adjourning the case as between Malkan and the remaining Respondents, the three for whom she and Miss Collier appear. It would be a shocking waste of four days' time, she says, if nothing was done in relation to this case, adjournment having the unpleasant consequence that accusations of an unpleasant character against individuals as well as bodies, which have already hung over those individuals for a number of years, would be hanging over them yet further. Indeed, were Mr Malkan to succeed and get a remission to a fresh Employment Tribunal, one would be charging that fresh Tribunal with looking at facts over six years old and looking at the circumstance in which those charges had hung over the individuals for over six years. I see a lot of force in Miss Carss-Frisk's submission. Unless it is manifest that it is impracticable to do so, the case as against her Respondents, she argues, should go ahead. Against that Mr Barclay makes the point, in a phrase, that "piecemeal is not a good idea." He says that at an earlier direction stage it had been seen convenient and right that all the cases should be run together and that that was good sense then and that it remains good sense now.
13. Miss Gill sees practical difficulties in separating out the cases as between her party, the Senate, and the other Respondents, Miss Carss-Frisk's clients. In a sense a line is attractive to be drawn between the 1989 events, which concerned the Senate, and the 1996 events, which concerned Miss Carss-Frisk's Respondents, if I can call them that, but Miss Gill says that the line is by no means truly as clear as it is represented to be and that the surgery to separate the two parts might not succeed. Indeed, she says, it would be unfair if, at a later hearing, the case as between Malkan and the Senate was heard by the same panel at the Employment Appeal Tribunal which had heard the initial part and which might therefore take a view on the law or, to some extent, on background facts which could prejudice the Senate without the Senate have been present to play some part in the decision of that earlier Tribunal.
14. If one has the same panel at the Employment Appeal Tribunal dealing with both parts of a separate case that, therefore, is a problem. If, alterntively one has separate panels at the Employment Appeal Tribunal dealing with the two separated parts of the case, well then, one runs into the difficulty of possible conflicts in the decisions between the two which, even in a jurisdiction dealing only with errors of law, can lead to yet further complications delays or expenses should any part need to go to the Court of Appeal.
15. It is very difficult to be sure about time estimates here but Miss Gill says that, were all the cases to come on together, they would take some four days. That is the current estimate for all of them together. If they were separated, her part alone, that is to say the Malkan against the Senate part, would says Miss Gill, take not less than three days and the outcome could very well be that one would be taking longer dealing with the two separate parts than if one had retained the matter in a lump so to speak. There is a further practical difficulty and that is as to getting a hearing at the Employment Appeal Tribunal before the end of July when I finish my time as President. It has been so far arranged that I will be hearing the case. I am listed to deal with the four days this week and it is very difficult to be sure whether four days or even more than four days could be arranged for any judge before the end of the summer term.
16. Accordingly, albeit with some reluctance and recognising the matter to be somewhat fairly balanced, I think the phrase that Mr Barclay used, that "piecemeal is not a good idea", best summarises the proper reaction to the case. I think these matters, having earlier being directed to be heard together should continue to be heard together and accordingly, given that the Senate part has already been adjourned, it unfortunately has the consequence that the case as between Malkan and Miss Carss-Frisk's Respondents needs also to be adjourned so that they can come on together as soon as conveniently possible but together.

[LATER]

17. On this part of the case I am concerned only with the costs of Miss Carss-Frisk's Respondents. The position is that the Senate's application for an adjournment having succeeded, the question, of course, arose as to whether the case as against the other three should occupy the remaining days of this week or not. Miss Carss-Frisk, strictly speaking, had no application for her cases to continue to be heard because that, in the ordinary way, was what would have happened in the light of earlier arrangements but, of course, once the Senate's application was adjourned and the question was ruled that all cases should march together, the position is that her clients, having prepared for tomorrow and the remaining days of this week, now find that they will have to prepare on yet another occasion when all the cases do indeed march together for a unified hearing at the Employment Appeal Tribunal.
18. It is little short of axiomatic that preparing a case twice costs more than preparing the case once and it seems to me that in so far as there have been or are likely to be increased costs on the part of Miss Carss-Frisk's clients they should fall to be paid by Mr Malkan for much the same reasons, if not identical reasons, to those that I spoke of earlier as between Mr Malkan and the Senate. If only he had acted more promptly after finding that Miss Gill had been the person who had previously acted for him and was acting for the Senate in this continuing litigation, if only, in other words, he had acted more promptly after April or May 2001 and if only the CRE, on having the issue or matter raised with them as long ago as 2001 had acted earlier, this whole problem, it seems to me, would have been avoided. In my view, on the face of things, Mr Malkan is liable to pick up a bill for costs. Mr Barclay, as he did in the case as between Malkan and the Senate, mentions that it would be right to adjourn the matter with a view to Mr Malkan showing cause as it was put. I do not understand that at all. There is no suggestion, as it seems to me, that Mr Barclay has not had ample time to take full instructions on the case and he has not identified any particular area on which further instructions are truly necessary or likely to be fruitful in any particular direction. It seems to me the nettle has be grasped here and now and accordingly, seeing the matter to be a consequence of Mr Malkan's short comings running back to April or May 2001, then the proper order is that the costs of NHS Executive (West Midlands) and the Postgraduate Dean and the Department of Health thrown away by the adjournment, abandoning from the next four days, are to be taxed by the Taxing Master if not agreed and are to be paid by Mr Malkan.
19. I am a little troubled by whether there should be a different order as for the costs of today itself, in other words, of the attendance of Miss Carss-Frisk, Miss Collier and their instructing solicitors today, but I do not see any sufficient reason to separate those costs from the other costs which I have described and they, too, should be borne by Mr Malkan, taxed if not agreed.