United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN DAVIES (One of Her Majesty's Counsel) Instructed by: Messrs Hudgell & Partners Solicitors 35/36 Market Street Woolwich London SE18 6QP
For the Respondent	No appearance or representation by or on behalf of the Respondents

SUMMARY

Practice & Procedure: Appellate Jurisdiction

It is not appropriate for a judge of the EAT, subject to an unresolved complaint to the Lord Chancellor by Mr Deman to handle that party's case. Breeze Benson applied.


 


HIS HONOUR JUDGE McMULLEN QC

1. Mr Deman is the subject of an extended civil restraint order imposed under CPR3.11 first by Brooke LJ and then by Buxton LJ on 15 June 2005: Deman v City Univerity and others [2005] EWCA Civ 795 following a finding that he persistently pursued proceedings which were totally without merit. That applies to the Court of Appeal only. Before the EAT he is entitled to be, and to be seen to be, treated fairly.
2. This case is proceeding under Rule 3(10) following Burton P's opinion that it contained no reasonably arguable point. The case dates from 1995, having had at least one excursion to the Court of Appeal and has been the subject of re-hearing before an Employment Tribunal constituted afresh and descending upon certain limited matters as determined by the Court of Appeal: [2003] EWCA Civ 329.
3. The Employment Tribunal in a judgment given with reserved reasons on 8 April 2005, following a hearing over several weeks, dismissed all of the claims of the Claimant, Mr Deman. They are claims of discrimination and victimisation, contrary to the Race Relations Act.
4. The President, conducting the sift, determined that none of the nine points met the standard of a reasonably arguable prospect of success and therefore the matter would be taken no further pursuant to Rule 3(7). He did so, having considered the papers, including a Notice of Appeal drafted by Mr John Davies QC who appears today.
5. The Claimant was given, as is his right, an opportunity, if dissatisfied, to have the papers put before a judge and so in accordance with the Practice Direction this hearing was constituted. On 17 September 2005 a letter was sent by Council for Ethnic Minority to the Registrar, copied to the Lord Chancellor and Scotland Yard for ethnic harassment and intimidation by EAT staff and judiciary. It is not on the record, because the Claimant is represented by solicitors. It indicated that an oral hearing listed before me should not take place because, in a recent direction, I had disposed of a number of appeals which the Claimant sought to make. I had done so solely because I protect Roman Catholic and Zionist racist mafia of the Tribunals and Employers, and I should not hear this case which concerns the Labour Party/Zionist mafia.
6. In response, a letter was written on behalf of the Registrar indicating that the case would be constituted in front of me and an application would have to be made as a matter of urgency. On 26 September 2005, a letter was written by Council for Ethnic Minority to the President, and copied to the Lord Chancellor.
7. The letter, which extends for two pages, rehearses a complaint previously made against the President himself. It also deals with a complaint made against HH Judge Prophet, Judge Peter Clark, Judge Pugsley and myself who are said to be engaged in a defamatory campaign against the Claimant in open court. There is also strong criticism of Judge Serota QC and of a chairman of Tribunals at Manchester, Mr Leahy. The letter goes on to indicate that a complaint has been made to the Lord Chancellor about me, alleging unprofessional conduct and racial bias and hostility against Mr Deman. The principal basis is the finding against him in a number of matters pending before the EAT and in respect of an allegation that I accused him of picketing the EAT.
8. The solicitors on the record representing the Claimant, Hudgell & Partners, having been provided by the EAT with those two letters, written by Council for Ethnic Minority, made an application that it would be inappropriate for me to hear the application today. At that stage, the solicitors made clear that they were making no comment on any of the matters set out in the letters from Council for Ethnic Minority. On the basis of that, a letter was sent indicating that the Deputy Registrar had refused the application but it could be raised as a preliminary point at today's hearing, as it has been.
9. Mr Davies, in one short submission, indicates without any comment upon the substance of the complaints to the Lord Chancellor, that while such a complaint is before the Lord Chancellor, I should not hear any application on behalf of the Claimant. He relies on Porter v Magill [2002] 2 AC 357 and Lawal v Northern Spirit Ltd [2003] IRLR 538.
10. I also drew his attention to the judgment of Cox J in Breeze Benton Solicitors v Weddell UKEAT/0873/03. In that case, she considered whether a Chairman of Employment Tribunals should have recused himself in the light of, amongst other things, a complaint made to the Lord Chancellor about his conduct which was still pending. Her conclusion was that it was inappropriate for a number of reasons for the Chairman to have continued to hear the case and he should have recused himself. One of the matters, as found in paragraph 47 of her judgment was this.

"Secondly, the very fact that Mr Reilly had complained about the Chairman's conduct made it inappropriate that the Chairman should sit. The significance of the complaint lay in the fact that it had been made and that the Chairman knew that he had complained and was aware of the specific allegations made about his conduct".

11. I have been made aware today of the complaint which is sought to be made against me. I understand that the complaint was made some time ago but while the Court of Appeal was seized of the matter, steps were no longer being taken. The Court of Appeal (para 1 above) refused leave to Mr Deman to appeal against my judgment and refusal to review it, dismissed his allegation of bias as totally without merit and imposed the civil restraint order. According to the letter, the complaint to the Lord Chancellor will now be re-activated; and so, I am in the same position as the Chairman in the Breeze Benton case.
12. It seems to me that given the very long procedural history of this case, if there is a possibility that the matter can be handled by another judge, it ought to be taken rather than any distraction be introduced into the merits of Mr Deman's case by consideration of whether or not he is having a fair hearing. Because of the civil restraint order, if I were to direct that no further action be taken on this case at this Rule 3 hearing, I could not handle any application for leave to appeal and it would be the end of the road for Mr Deman's claim. This case is at a very early stage and the only loser by vacating today proceedings, as Mr Davies points out, is Mr Deman himself, who will wait yet longer for a determination of the claims made originally 10 years ago.
13. I have paid careful attention to those three authorities which deal with apparent not actual bias. Mr Davies has stressed that he does not make his submission upon the allegations of actual bias set out by Council for Ethnic Minority. It is by reference to the test for apparent bias:

"… whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased." (Porter v. Magill [2002] 2 AC 359, paragraph 103, per Lord Hope of Craighead)

14. It seems to me that no harm will be done by my standing aside from this case. The Claimant feels that justice may not be done but equally, it could be said, I suppose, by the Respondent that with a complaint by Mr Deman to the Lord Chancellor hanging over me, I might seek to demonstrate my fairness by finding in his favour when I would otherwise not. For both those reasons, therefore, it seems to me that Mr Davies' application should be accepted. I acknowledge that I have had no help because this is a hearing where no respondent appears under the rules, nor have I had the assistance of an advocate of the Court. I make up my own mind, guided by those authorities and the brief submission made by Mr Davies.
15. I will now pass this case to the President to decide which judge should hear it. I note that a complaint has been made against Judge Clark and Judge Pugsley and Mr Davies tells me he would make the same application. So I will order this case to be heard before a judge which is not any of us. Mr Davies expressly volunteered, despite the terms of the letter from Council for Ethnic Minority, that no objection is taken to the President dealing further with Mr Deman's matters, including this Rule 3(10) hearing.