United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN WARDEN Representative
For the Respondent	MS J COLLIER (of Counsel) Instructed by: Office of the Solicitor Department for Work and Pensions Department of Health (Employment Team) New Court - Room 523A 48 Carey Street London WC2A 2LS


 


HIS HONOUR JUDGE PETER CLARK

1. The Appellant, Miss Von Goetz (now Mrs Warden) commenced these proceedings in the London (South) Employment Tribunal by an Originating Application presented on 28 February 1998. She there complained of sex discrimination, breach of contract and brought an equal pay claim against the Respondent, South Thames Department of Postgraduate Medical and Dental Education. The matters complained of, now largely lost in the mists of time, occurred in 1996 to 1997 when the Appellant, a junior doctor, trained under the auspices of the Respondent Department whilst she was employed by St George's Healthcare NHS Trust (St George's). That first application was followed by a second, presented on 13 November 1998, this time bringing claims under the foregoing heads together with a claim of victimisation following presentation of her first complaint.
2. Her Equal Pay claim was compromised in April 1999. The remaining claims then ground to a halt. It seems that although the Appellant was capable of writing lengthy, largely irrelevant letters to the Tribunal and the Respondent, she would not engage with the procedural tasks required of her, particularly the provision of Further and Better Particulars of her Claim.
3. The upshot was that on 7 August 2001 a Chairman, Mr D Booth, heard the Respondent's application to strike out the balance of her claims. By a Decision with Extended Reasons dated 22 August he did so. Those Reasons speak for themselves; they catalogue a tale of delay, adjourned applications and failure to comply with Tribunal Orders on the part of the Applicant. That Chairman considered whether he could take action short of a strike out, but decided that he could not. As it was put, Reasons paragraph 21:

"I have considered whether to give her one last chance to prepare her case. But three years and more on from the inception of this case, hundreds of documents and tens and thousands of pounds worth of costs to the Respondents have still not even produced particulars of her claim. I have no confidence that any further steps I can take would ensure that this matter can come to trial. Ms Von Goetz knew at the beginning of this year that the failure to provide particulars would result in her claims being struck out and that moment has now arrived."

4. The time for applying for a review of that strike out Order, under Rule 12(4) of the Employment Tribunals Rules of Procedure 2001, expired on 5 September 2001. The Appellant was by then well acquainted with Tribunal procedure. She has brought Tribunal proceedings against both St George's and Anglia & Oxford Regional Health Authority. We have seen the judgments of Mr Justice Lindsay, President, delivered on 18 October 2001 in three appeals concerning the St George's litigation and a further judgment in the Anglia proceedings given on 21 November 2001.
5. Instead of making a review application as such the Appellant, by a thirty page document dated 5 September but not received by the Tribunal until 11 September, applied for an extension of time for making a review application under Rule 17(a) adding that she applied for an oral hearing for review if the application under rule 17(a) is not allowed.
6. On 14 September the Chairman refused to extend time by a Decision with Extended Reasons bearing that date.
7. Miss Von Goetz appealed to the Employment Appeal Tribunal (a) against the strike out decision (EAT/1416/01) and (b) against the refusal to extend time (EAT/1415/01). Those appeals, referred to respectively as appeals D and E first came on for preliminary hearing on 24 May 2002; that hearing was adjourned at the Appellant's request as was the next hearing date of 5 July. Finally the preliminary hearing took place before a division presided over by Mr Justice Maurice Kay on 11 September 2002. On that occasion appeal D against the strike out Order was dismissed. As to appeal E, the EAT accepted that one ground only was arguable and should proceed to a full hearing. It is formulated in amended grounds of appeal signed by Miss Von Goetz and dated 18 September 2002 in this way:

"The Employment Tribunal erred in law by refusing without reason or justification the Applicant's application (pursuant to rule 13(1) of the Employment Tribunal Rules of Procedure 2001) for a review of the Tribunal's decision of 22^nd August 2001; alternatively, by failing to consider and adjudicate upon that application."

That is the way in which the appeal was formulated by Counsel then appearing for the Appellant before Mr Justice Maurice Kay and members on 11 September.

8. In a footnote to the amended ground of appeal, Miss Von Goetz indicated a possible intention to apply for a review of the EAT Decision limiting the full hearing to that single ground of appeal. As we understand the position from Mr Warden today, that is still her intention, although she has not felt able to formulate the review application.
9. Applying the guidance of Lord Justice Peter Gibson in Miriki -v- Bar Council [2002] ICR 505, paragraph 28, we would not have been minded to permit her to enlarge on that single ground of appeal, absent a successful review application to the last division of the EAT or appeal to the Court of Appeal, had the matter proceeded today, subject to argument.
10. The matter was duly listed for hearing before this division today. On 24 April the Appellant's husband wrote to the EAT applying for an adjournment of today's hearing. It has to be said that application is not altogether surprising, given the history of adjournment applications in the course of Miss Von Goetz's various cases. Mr Justice Lindsay refused such applications when disposing of the St George's and Anglia litigation; Mr Booth refers to the numerous adjournment applications made in the course of these proceedings in giving his reasons for the strike out Order; we have noted the earlier adjournments before the preliminary hearing and appeals D and E finally came on before Mr Justice Maurice Kay's division on 11 September last.
11. The basis for the application is the Appellant's medical condition. The Appellant is most anxious that the nature of that condition should not be made public. We shall respect her wishes so far as that confidentiality is concerned and will make no further reference to the details in this judgment. We have them clearly in mind.
12. I directed that the application be renewed before the full Tribunal this morning with the Respondent present. Mr Warden has done so.
13. We must record our appreciation of the courteous and measured way in which Mr Warden has addressed us on this difficult matter. We must balance the interests of both the Appellant and Respondent and the wider interests of the administration of fair and speedy justice.
14. Having set out something of the history which, as we have earlier indicated, we shall not here repeat, culminating in a short letter from Dr Gill, Consultant, dated 28 April 2003, Mr Warden invited us to adjourn this hearing and order a stay on proceedings for six months, at the end of which a full medical report is to be obtained.
15. Ms Collier, on behalf of the Respondent, neither opposed nor supported the adjournment application; she opposed a stay for six months; instead she proposed, in line with the observations of the Court of Appeal in Teinaz -v- London Borough of Wandsworth [2002] IRLR 721, particularly Lord Justice Peter Gibson, paragraphs 21-22 and Lady Justice Arden paragraphs 38-39, that a short period of time be granted by way adjourning this hearing in order to obtain a full medical report; the letter from Dr Gill, through no fault of his, but due to short notice, being inadequate for a proper assessment today of the Appellant's condition and prognosis.
16. We prefer the submission of Ms Collier. We shall grant the application for an adjournment, reluctantly from an administration point of view, but we must ensure a fair hearing of this appeal.
17. In these circumstances we shall direct that the Appellant produce a full medical report from a Consultant setting out a full diagnosis, history and prognosis for the Appellant to include his or her view as to when the Appellant may be able to conduct these proceedings and the effect that the resumption of litigation may have on her health. That report to be produced within twenty eight days of today, failing which the appeal will stand dismissed.
18. Any consequential applications should be made to me on paper. In particular, I shall decide when the matter is to be relisted, having received the representations of both parties.