United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS CATRIONA MacCLAREN (Of Counsel) Instructed by: Messrs Douglas-Jones Mercer Solicitors 147 St Helen's Road Swansea SA1 4DB
For the Respondent	MR NIRAN DE SILVA (Of Counsel) Instructed by: Messrs Morgan Cole Solicitors Llys Tawe Kings Road Swansea SA1 8PG

SUMMARY

Practice and Procedure

Having conducted a hearing on live evidence pursuant to Facey v Midas, no bias or apparent bias by the Chairman was proved..


 


HIS HONOUR JUDGE McMULLEN QC

1. In this case we will refer to the parties as Claimant and Respondent. It is a case about allegations that when presiding over an Employment Tribunal the Chairman was actually biased and also gave the appearance of bias against the Claimant. The judgment includes our findings of fact about what occurred in the hearing following our hearing oral evidence today.

Introduction

2. It is an appeal by the Claimant in those proceedings against the decision of an Employment Tribunal sitting over 7 days at Cardiff. The Chairman was Dr Rachel Davies. The members were Dr Gerald Davies and Mr George Watson. It was registered with extended reasons on 22 July 2004. The Claimant represented himself and here is represented by Miss Catriona MacClaren of Counsel. The Respondent was represented there and here by Mr Niran de Silva of Counsel.
3. The Claimant claimed race discrimination in the treatment of him following two complaints against him of sexual harassment. The Respondent denied the allegations. The essential issues before the Employment Tribunal were to decide the facts applying the burden of proof in discrimination claims and come to a decision. It rejected all of the Claimant's claims and ordered him to pay costs which were in fact about one tenth of the costs incurred amounting to an award of £5,600. He appeals against that decision.
4. Directions sending this appeal to a full hearing were given in chambers by Burton P and also at an adjourned full hearing before Burton P and members. The approach which we have taken today has involved us in considering oral evidence. We heard from the Claimant himself and from Miss Jane Harries, who have been cross-examined. It is necessary to say something about the facts.

The facts

5. This part of our judgment is brief since the issue before the Employment Tribunal was to consider whether there had been race discrimination in the treatment of the Claimant following complaints made by two female trainee doctors. The Claimant is a specialist in obstetrics and gynaeacology. He is Egyptian having been in this country for several years and his native language is Arabic. English is his second language. The allegations were investigated and the Respondent came to the view that the complaints should be upheld and that action should be taken. The Claimant did not appeal internally but issued proceedings in the Employment Tribunal.
6. The course of the proceedings before that Tribunal were unusual in a number of respects. As could be expected, careful preparations were put into the case by the Claimant who represented himself. He prepared a substantial number of what he described as questions, which he would put to the Respondents' witnesses when called. Most unusually this document, which includes not simply questions but very long statements of evidence as well, was handed to the Tribunal before the case began. This was only made known to the Respondent during the course of our proceedings. It is not clear that the Tribunal actually paid any attention to it or even received it since there is no reference to it.
7. Other unusual aspects of this case concern the way in which the Claimant decided to conduct his cross-examination. The basis of the case was summarized by the Tribunal as follows:

"56 This hearing has lasted six days. Because Dr Korashi is not represented, we have given him considerable latitude in his conduct of the case. His examination of most of the respondents' witnesses cannot have been anything other than offensive to them. Nothing whatsoever in the evidence has justified his repeated description of them as a "team of white racist doctors". His examination of the female witnesses Dr Joels, Emma Rees and Dr Matthes, has been aggressive to the point of insult, and can justifiably be described as bullying. Such conduct would not have been permitted of a legal representative. We have been impressed with the calm and courteous manner in which these witnesses, indeed all witnesses, have responded. We have been impressed also with the restraint shown by Mr De Silva for the respondents in the face of the inflammatory questioning of his witnesses. No doubt all concerned are deeply conscious .of the tragic effects of. the stress Dr Korashi has suffered as a result of what he still Insists were false allegations."

That is an overview of the analytic approach which was taken to each of the allegations. In short, the six principal actors in this trial were all said to be conspirators in a white racist conspiracy aimed at getting rid of the Claimant. Each of those allegations was put to the witnesses and in turn the tribunal made a finding. Each was rejected. The Claimant had made and produced no substantial evidence to back up the claim made against each of them and as depicted by the Employment Tribunal. The outcome was to dismiss all of the claims and to make an award against him of a fraction of the costs, based upon a cost warning given during the course of the hearing.

8. The Tribunal also made a remark as to the future relationship of the parties. It must be recorded that the Claimant was not dismissed but was still in service when the tribunal said this.

"57 It is not for this tribunal to advise as to the way forward. We would merely comment that the inevitable breakdown in relationships is such, that the interests of patients could be at risk were this employment contract to continue. In such circumstances an agreed termination to be negotiated by legal representatives on both sides might be an appropriate course for consideration."

9. None of the findings as to the individual complaints or as to the overall conclusion in paragraph 56 is the subject of any ground of appeal. Thus for our purposes, subject to the fair hearing point, these represent the unchallenged findings of the three members of the Employment Tribunal.
10. The basis of the contention on appeal is that a fair hearing was not conducted. It is contended on some eight grounds that not only was there an appearance of bias but there was actual bias. The object of the criticism is the Chairman herself. For Miss MacClaren on behalf of the Claimant has made it clear there is no criticism whatever of the two lay members save in so far as they of course are decision makers in respect of its paragraph 57 above. The way in which we propose to deal with the submissions is to consider an overview of the evidence and take each point as it is made, in the written Skeleton Argument presented to us, both before and in the course of today's hearing .

The legal principles

11. The legal principles to be applied in a case such as this appear to us to be as follow:

(1) The test to be applied when determining whether a judgment should be set aside on account of bias, or apparent bias is whether the fair-minded and informed observer having considered the facts would conclude that there was a real possibility that the tribunal was biased. See Porter v Magill [2002] 2 AC 357 and 494 per Lord Hope.

(2) Such an observer can perhaps be expected to be aware of the legal traditions and culture of the jurisdiction but he may well not be wholly uncritical of this culture; s/he would be neither complacent nor unduly sensitive or suspicious: Lawal v Northern Spirit [2004] 1 All ER 186, 196 per Lord Steyn for the whole House.

(3) In Lodwick v London Borough of Southwark UKEAT/0116/05 Burton P and members dealt with the approach to bias and apparent bias in an Employment Tribunal by citing the following:

"45. Pill LJ referred, in the Court of Appeal judgment, to "something more" being required, and so far as that is concerned Mr Lodwick submits that something more was here in this case, in that he submits that a deduction can be drawn from the way in which the hearing proceeded that there was indeed some apparent bias against him."

"48 …And, of course, it must be emphasised as we always do, that there is a duty upon an employment tribunal by way of case management. The tribunal chairman is there to tease out what the issues really are, to discourage irrelevance, and to ensure that cases are carried through expeditiously. Although, of course, that will be mingled with due sympathy towards an unrepresented litigant,…"

(4) We pay less attention as enjoined by Lord Steyn in Lawal to judgments of an earlier vintage such as Kennedy v Commissioner of the Police for the Metropolis (unreported) EAT/356/90. Wood P and Members at page 22 where it was accepted on behalf of a Respondent seeking to uphold a judgment of the Tribunal Chairman challenged as biased that it was all right if the Chairman was forthright, robust, blunt, possibly capable of irritation when she saw inefficiency or a waste of time.

(5) The approach to a hearing in the EAT of an allegation of bias is regulated by the judgment of the EAT, Lindsay P and members in Facey v Midas Retail Ltd [2001] ICR 287 at 303 paragraph 39

"(i) First the steps outlined in paragraph 9(3) of Practice Direction (EAT: Procedure [1996] ICR 422 will be taken and unsworn comments may then be taken from the chairman and, if necessary, other members of the employment tribunal under paragraph 9(4); (ii) the appeal may next require sworn witness statements (or further ones) from persons not including members of the employment tribunal; (iii) the appeal tribunal may then invite, but cannot require, the chairman or other members of the employment tribunal to provide sworn written evidence-in-chief as to primary fact; (iv) it will in a suitable case be possible, after such an invitation, for adverse inferences to be drawn from a member's failure without good reason to provide sworn written evidence-in-chief of primary fact; (v) if, notwithstanding the material already collected, including whatever has been collected by way of disclosure orders, the appeal tribunal is of the view that such cross-examination will materially assist it, it may require the attendance for oral cross-examination of deponents not including the chairman or other members of the tribunal; (vi) the appeal tribunal is not to hear a member's cross-examination, be it as to primary or secondary fact, even where the member in question has agreed to attend;(vii) the appeal tribunal is not to require the attendance of a member of a tribunal for cross-examination nor to require disclosure of documents from him or her; and (viii) the appeal tribunal is not to draw adverse inference from a member's failure to attend for cross-examination."

(6) Without oral evidence it is impossible to form a conclusion on disputed facts. See Shodeke v Hill & Others (unreported) UKEAT0394/00. Rimer J and members.

(7) The burden is on the Claimant, to the civil standard, to show a real possibility of bias.

(8) The Practice Direction indicates a procedure following the above two authorities to be adopted in cases where bias is alleged and this includes the obtaining of affidavit and statements, and comments or statements from the judicial officers. Appeals on the ground of case management are the less likely to succeed. See 2004 Practice Direction paragraph 11.6.2 which says as follows:

"11.6.2 The EAT recognises that chairmen and employment tribunals are themselves obliged to observe the overriding objective and are given wide powers and duties of case management (see employment tribunal (Constitution and Rules of Procedure) Regulations 2004 (SI No. 1861), so appeals in respect of their conduct of employment tribunals, which is in exercise of those powers and duties, are the less likely to succeed."

12. The procedure by reference to those authorities is not entirely satisfactory. More and more cases arise, not only in our jurisdiction but throughout the civil and criminal justice systems, based upon judgments on case management by judicial officers. It is in the public interest, in accordance the relevant procedural rules, in whichever jurisdiction the case arises, that there be firm case management to ensure of course the fairness of proceedings between the parties in any given case and also recognition of the large numbers of people whose cases come before the courts. Cases must be managed expeditously and fairly in accordance with the relevant overriding objective.
13. A similar increase has occurred in relation to claims alleging bias or apparent bias. In order to cater for these complaints the EAT has adopted a number of measures. We have outlined some of them above. In addition, a protocol has been agreed and published between the EAT and ACAS. ACAS is willing on direction of a Judge to consider conciliation of claims initially involving bias or apparent bias but actually including a number of other issues, because in a significant minority of cases of discrimination on grounds of race, gender or disability, an appeal to the EAT ncludes an allegation that the Employment Tribunal, or a member of it was biased or appeared to be biased.
14. So, we have adapted our procedures and have also made ACAS available pursuant to Rule 36 of the EAT rules. The purpose behind that is to indicate that there may be cases which appear to be unfair to the particular person but on proper examination reveal very firm case management or normal relations in an Employment Tribunal which may strike a casual observer differently.
15. Be that as it may, the procedure set out in the above authorities is always wanting. That is illustrated by our own case. The target of the criticism properly made by the Claimant's counsel is the Chairman of the Tribunal who cannot be required to do more than make her comments, sometimes in sworn form. Thus the vehicle for the examination of her conduct has to be the live evidence of a person who witnessed the proceedings. Here it is Miss Harries. She does not represent the Chairman. She does not represent the Respondent. But she has been called upon to give not only her evidence of what occurred but also her opinion, for she was asked in cross examination how she saw the proceedings. She was also criticised because she was not a representative for the fair minded observer.
16. This evidence is of low probative value. We must construct the fair minded observer and construct his or her knowledge. In the conduct of our hearing we were invited to, and do, consider the presentation of the Claimant in live evidence. That informs our judgment of what impression the fair minded observer would have had of the Employment Tribunal proceedings.
17. We also approach the hearing of this case with a clear understanding of the role of an Employment Tribunal. Two of us on this Tribunal have experience sitting on there. It is, as we are, a tripartite body, consisting of a legal and practitioner specialists in employment relations. There is often an opportunity for the members to pass the parties in the corridors of the buildings, as there is no separate judicial entrance. The Tribunal will have had unrivalled experience in dealing with litigants in person and of the handling of the most sensitive issues in our society today – race, sex, language..
18. The EAT is unique in the procedure which we have described for examining issues of bias. There is no transcript available of Employment Tribunal proceedings. We, too are experienced in dealing with litigants in person. We are the only superior court of record where regularly litigants in person, or party litigants in Scotland, appear, or where representatives appear who are not legally qualified. They are by the Employment Tribunals Act 1996 entitled to appear and we encourage and respect their attendance and the informality which is necessary when that occurs.
19. We therefore understand the circumstances of dealing with the most sensitive issues as here brought by a litigant in person opposed by a major public sector Respondent represented by experienced Counsel.

Discussion and conclusions

20. We have decided not to accept the arguments of the Claimant and that the Appeal should be dismissed, accepting as we do the submissions of the Respondent. Before we descend into the detail we have formed an overall impression.
21. The Claimant gave clear evidence to us that added to his original written evidence in significant ways. We find that he was not disadvantaged by language or idiom. He is obviously intelligent and had a firm grasp of the documents in this case and of the points which were put to him. Of course he was represented here but it was not necessary for his Counsel to step in to stop unfair questioning by Counsel for the Respondent, to ask for additional time, or to assist in any other way. He was clearly under stress at the Employment Tribunal as found by it and at that Tribunal he could not be expected to hear and recall all that was going on, to accept directions from the chairman, to give evidence itself, to cross examine, to make oral applications, and to make written applications.
22. On the other hand, Miss Harries was there. She is a legal assistant of 12 years' experience including four in the specialist employment unit at Morgan Cole Solicitors. She is independent. She, as part of her legal team would understand the duties which that legal team owes to the Tribunal to be independent. Her role in this case was to take a note. She was not the instructing solicitor, who was there to give instructions to Counsel. Where her note describes a matter, we accept it. Where the note is silent we consider the matter was either unimportant or did not occur. Thus in general we prefer the evidence of Miss Harries to that of the Claimant.
23. In addition, we accept the lay members' evidence in every material respect and we accept their overall assessment of the proceedings for they first examined the nature of the criticisms analytically. As we have said, they are not criticised, they owe duties of independence, and they would not stand by and watch abuse to or unfairness of a litigant in person. As is clear, independently each rejects the criticisms of Dr Davies, as Dr Davies herself does. We accept her account of the way in which she conducted the proceedings on behalf of the tribunal
24. With those observations in mind we turn to the points made by the advocates here following a day of oral evidence,

1. The time to read the statements.

25. This is a complaint that the Tribunal spent inadequate time reading the Claimant's 97 page witness statement. Of his account it was 2 hours over a lunch period. That is not accepted. We are unable to form a view as to whether it was 2 hours or 2½ hours or something in between. We do accept however the assertion by all three members of the Tribunal that adequate time was given to read the evidence of the Claimant. We have tested this ourselves. We, too have read this evidence. Two hours – even over lunch – would have been adequate time. This on its own is not a ground which can be accepted as communicating unfairness.
26. When juxtaposed with the time taken by the Tribunal to read the Respondent's evidence, it still is not a ground of justified complaint. It was entirely a matter for the Employment Tribunal to decide how long it took. It appears that an equal amount of time is taken to read the Claimant's evidence and the rather shorter evidence of 4 witnesses for the Respondent. That does not indicate on its face an unfairness. The question is: was adequate time given to reading the material by the Claimant? On the finding which we make, that the Tribunal may have spent a little longer proportionately on the Respondent's evidence, that is not a ground of complaint which would cause unease to the fair minded observer.

2. The Chairman's interruptions

27. It is common ground that the Chairman made a number of interventions. We have examined each one. They are respectively decisions of case management, decisions on what is irrelevant, and the proper understanding of what is appropriate in cross examination. Having observed the Claimant give evidence to us it is our view that he needed to be steered in relation to his evidence.
28. The number of interventions made by the Chairman is relevant. A large number of interventions would point to unfairness. If they are all necessary there can be no unfairness. The Chairman is under a duty to manage this case within the time and to keep it on the rails. If the manner of the interventions is inappropriate that too can be unfair. We have difficulty in dealing with a criticism of the manner in which an intervention occurs. Even a transcript would not show us that.
29. We cannot condemn the Chairman on the basis of what is described as the way in which she intervened, except by looking at one illustration. A note is taken by Miss Harries indicating the Chairman's response such as "irrelevant", "not relevant", "what is the relevance?" Miss Harries accepted in cross examination that her note was not verbatim. As observed by the lay members at the Employment Tribunal, she is to be complimented with the speed with which she took the material down. We can well understand how a legally trained writer would not write precisely the words used in the proceedings to convey a message that the Chairman is indicating that the point is irrelevant. Thus, while we accept on paper that her legal shorthand note appears to place the Chairman in a light which shows her being terse, in context we reject the criticism.
30. We further take the view having heard the Claimant himself that the interventions were justified because the Claimant misunderstood the nature of the exercise. The point of cross examination is to put the case. That is very difficult for a litigant in person to understand; indeed many trained lawyers fail to see that, and use that tool with clinical precision. It is a fine line between a litigant in person putting the case and giving evidence; but that there is a line there cannot be any doubt. The Claimant told us that he was not allowed to put his questions in full. He also told us that he was not allowed to put his evidence. We do not accept that there is a difficulty in language. As is plain from his written questions prepared in advance, the Claimant was, not only asking questions but also putting his evidence at a time when it was inappropriate. The Chairman was correct to rein in such inappropriate questions and to require the Claimant to use the time of cross examination appropriately, leaving time for his evidence when he gave it..

3. The Claimant's questions

31. The Claimant's attack upon the questions which he wished to ask but which were denied to him has changed. Originally he contended that he was prevented from putting his question. In his evidence before us it is put as not being able to put his question in full. We see the force of the submission made on behalf of the Respondent that this is a change. The view of the Claimant about how much it was necessary for him to put in each question is plainly different from that of the Tribunal as expressed by the Chairman. What he would regard as a right to put a question in full is plainly different from the right to put his case. And once this is seen as the context in which this complaint arises we see no affront to the principle of fairness in the Chairman seeking to control the questions in the sequence with which they are put.
32. There can be no doubt that the Chairman's interventions might have appeared to have been robust and firm, as she accepts. She was plainly having her patience tried. Her duty was to deal with the case patiently but to ensure that it ran smoothly. We see no error in her approach nor in the view that a fair minded observer would have taken of this particular complaint.

4. Offering answers

33. It is here contended that the Chairman supplied answers to questions on behalf of witnesses. The Chairman contends, and the same is said by the lay members, that she gave the evidence already given. In other words when a question was asked to which an answer had already been given by the witness, or evidence had been given unchallenged elsewhere, she simply reminded the Claimant that that had been done. She was not giving fresh evidence which should be given by the relevant witness but was merely recalling evidence already put in. In our judgment a fair-minded observer observing the whole of the proceedings would not have taken the view that there was unfairness.

5. Restricting cross-examination

34. What we have said above applies to this complaint too. The Claimant as is clear from his draft questions was engaged in an exercise in prolixity. The case was listed and completed in the relevant time but that was in no small measure due to the control exercised by the Chairman on behalf of the Tribunal and that included requiring the Claimant to make his case expeditiously.

6. Amendment of statements

35. There is a misunderstanding of the use which is to be made of two pieces of evidence. The first is three paragraphs to be deleted from a witness statement from Dr Gasson. It is plain from the notes which we have seen that counsel was abandoning reliance on three paragraphs but was continuing to rely on paragraph 10. The Chairman acknowledged that, and acknowledged also that it was a matter for the Respondent's counsel to decide whether reliance was to be placed on that material in the light of the allegations being made by the Claimant. It is true that the wrong impression could be given to the Claimant, not understanding the nature of the forensic exercise. As the Chairman said, it was a matter for counsel for the Respondent to decide whether the evidence goes in or not. That is actually counsel's responsibility.
36. The second specific example relates to a diagram of a part of the building where sexual harassment by the Claimant was said to have occurred. This is a drawing given by a witness who was to be called to give live evidence. We think it telling that Miss MacClaren when she put this point to us indicated that this drawing had been relied on by witnesses for the Claimant. In other words they had seen the document. They have given their own evidence about the particular layout of the room, as did the Claimant, so that if the document were to be relied on by the Respondent, at a point when the relevant live witness was called, then at least the Tribunal would have both sides' account. If it was not to be called all the Tribunal would have would be the evidence of the Claimant on these witnesses. Once again a misunderstanding as to the purpose of the examination has been revealed.
37. We accept the Respondent's case as to the nature of the evidence. We agree that the judgment of the Tribunal could have been put differently and more sympathetically to indicate that it was not simply a matter for counsel of the Respondent. Nevertheless once a fair-minded observer knowing the nature of the cross examination and the presentation of evidence in a general form would not have been confronted with a raised voice.
38. It is contended the Chairman raised her voice against the Claimant and that he pointed this out to her. We accept the evidence of Miss Harries, which is not denied, that the Chairman raised her voice. But she did it as Miss Harries told us, to be heard above the Claimant who was plainly not taking her direction. Again, this may be an illustration of the patience being tried of the Chairman but there is no excuse for raising voices in a judicial hearing. It might have been inappropriate but again in the contex,t as we accept of the Claimant seeking to talk over the Chairman, there is no unfairness.

7. The Chairman's comment in the corridor

39. In this allegation the Claimant contends that a comment was made to him by the Chairman just before the weekend adjournment and it is this.

"Dr Davies Conversation with me On Day 2

The hearing finished early on Friday 02/07/2004 because of other Tribunal Commitments not related to my case. While leaving the room of the hearing, I found Dr Davies in the corridor immediately next to the hearing room, 1 told her," Have a nice weekend mam ", she told me, "Listen, I want you to think carefully over the weekend", I replied "about What mam?". Madam Chairman replied, "About the whole case, think carefully, think carefully, think carefully".

40. We find that a similar comment was made during the course of the open Tribunal hearing for there is a note (in indirect speech) taken by Miss Harries as follows:

"The Chairman advises in any event this was only valid until a decision was made. The Chairman also asked the Claimant if he had thought deeply about will happen if it is reported that if he loses the case what effect this will have upon his career. The Claimant said he had.

Now that is in the context of an early application for a restricted reporting order, this being a case of sexual harassment and therefore appropriate for a restricted reporting order to be made, as indeed it was. But there is a trace of the comment said to have been made in the corridor in that passage in open Tribunal.

41. We find it unlikely that the Chairman did make such an unguarded comment away from the members and away from the Respondent. If the implication is, as the Claimant asks us to accept, that this was the expression of a concluded view by the Chairman that he should withdraw the proceedings because he would lose, we can see no reason for its late addition in this drama. It was not in the Notice of Appeal. This Notice of Appeal is unusual. It is in the form of a statement by the Claimant signed by him. It was plainly regarded by Burton P when he sifted this appeal as meeting at least the earlier requirements of particularization of allegations of bias or apparent bias required under the Practice Direction.
42. The late addition occurred after the aborted hearing before the EAT under HH Judge Birtles. There has been further addition to the allegation in oral evidence to us indicating that the Chairman was angry, that she pointed her finger or pen at him, and that he was intimidated about putting this in his earlier Notice of Appeal. The submission made to us that the Claimant's evidence should not be accepted is made with some force.
43. The Chairman in a step by step response to the Claimant's allegation says nothing about this. When she agrees with points made by the Claimant, or disagrees with them, she says so. But on this there is nothing. Two explanations have been advanced by Miss MacClaren. One is that the Chairman agrees, the other is that she failed to read properly the Claimant's affidavit and omitted to respond to it.
44. We bear in mind where the burden of proof lies in this case. It is upon the Claimant on the balance of probability to show that this event took place. Miss MacClaren submits that in the absence of rebuttal of it by the Chairman the only conclusion we can reach was to uphold the Claimant's version. We respectfully disagree. We uphold the Respondent's contention that this has been an elaboration by the Claimant. His failure to introduce it earlier in the proceedings is an indication of that, together with his further additions during oral evidence pointing to the fact, as the Respondent contends, that it did not take place.
45. Bearing in mind the inherent probability of this comment being made privately to the Claimant by the Chairman, the Claimant has not satisfied us on the balance of probability that this remark occurred. It is possible that he is confusing the remark which we have cited from Miss Harries' note occurring during the debate on the restricted reporting order.
46. We asked Miss MacClaren what would be the Claimant's case if we accepted that the remark was made. She was unable to operate on the hypothesis and we have no criticism of her for that. But since we found that the remark was made in open Tribunal we would also find that it was not improper for that remark to be made. It does indicate that the Chairman was giving guidance and inviting the Claimant to consider carefully the effect on his career of publication of these proceedings and it may be that that is what stuck in the Claimant's mind. If the remark was made in the corridor, as we find it was not, it would give some basis to the implication with which he puts upon it. Whether on its own it is sufficient to indicate to a fair-minded observer a concluded view against the Claimant is a different matter. But it would at least have some substance. However we find that it did not occur.

Paragraph 57

47. The advice is recorded in paragraph 8 above. This was an unfortunate remark and as the Tribunal itself noted it was not for it to give further advice to the parties. A relationship was in place. The Claimant was still an employee of the Respondent. True it is, that he had given evidence in his statements about what he perceived to be risks to patients. True it is, that on the Tribunal's findings about the way in which he challenged the Respondent's witnesses there was an impression that the relationship between them had broken down. But the Tribunal ought not to have made that comment. It might have given some substance to the complaint, but in the context in which it was made we do not consider that it indicated bias or apparent bias. The context is the preceding paragraph, which on the one hand criticizes the Claimant for his approach, and on the other acknowledges sympathy for the stressful position which he has been in. It does not indicate an unfairness since it suggests that the Claimant take legal advice and the Tribunal was aware that legal advice had been available to the Claimant at an earlier stage in the disciplinary proceedings. And it does require both sides to consider what to do next. But the suggestion, as it were, of an inevitable breakdown and an invitation to talk about an agreed termination, should not have been made. Had it been suggested that protocols be adopted, as frequently occur when there are disputes between medical practitioners, or that assistance may be given by one of the professional bodies or by ACAS to the on-going relationship, that would have been entirely proper.
48. We now take an astringent approach to the findings we have made. In part we have supported in fact the contentions made by Claimant about interruptions and about the way questions were put. But neither singly, nor now at this part of our judgment in aggregate, do we hold that an impression would be given to the putative fair minded observer with the necessary knowledge that the Claimant's case was being treated unfavourably, or that the Respondent's case was being treated favourably.
49. We therefore dismiss the Appeal.
50. An issue of costs arises. The day on which this case should have been held was wasted. Judge Birtles accepted the application of the Claimant for wider examination of witnesses. And it is common ground that the Claimant was prepared to go ahead on that basis on the day. But the order which was made was that there be evidence. In our judgment that was entirely proper for the EAT to do in accordance with the authorities we have cited above and the Practice Direction.
51. Modern litigation is conducted on the basis of cards face up which include all relevant affidavits and witness statements served in advance, and as in today's case bespeaking paragraphs upon which there will be cross-examination and the realistic timetable for it to be completed. Thus the hearing was adjourned for evidence to be produced in the only way which would be fair, that is by further material being produced in advance of an oral hearing.
52. Under Rule 34(a) none of the pejorative epithets needs to be invoked by the Respondent. Judge Birtles' EAT left this matter open to us. We have heard argument on it. We hold in our discretion that the costs thrown away on that one day, should be paid by the Claimant to the Respondent subject to two matters.:

(1) there has been no examination of or submission made to us about the Claimant's ability to pay. A relevant consideration for us is the Claimant's means to pay.

(2) Miss MacClaren has not had an opportunity to consider the amount of costs in the schedule which has been produced. So we will simply observe that this is a case in which costs are to be ordered subject to both of those matters.

53. We would very much like to thank both counsel and both Dr Korashi and Miss Harries for the way in which they have approached these difficult proceedings today. We commend the professionalism of them all.

Appeal

54. An application has been made on behalf of the Claimant for permission to appeal. No grounds have been put forward. It is a requirement that if an application is to be made which is to meet the standard of the Court of Appeal in Uphill v BRB (Residuary) Ltd [2005] EWCA grounds must be specified. We will take it that every single ground argued before us is the basis upon which it is now said a reasonable prospect of success attaches, or there is some compelling reason for the case to be heard. With no assistance on this, we do not see a reasonable prospect of success in the appeal. Nor do we consider there is a compelling reason for this case to be heard. It must be borne in mind that reasonable prospects on any given ground is not enough unless there is a reasonable prospect of succeeding on the appeal. As we have indicated the examination we have given to this case is one of fact on both the written and oral material and we consider that it is unlikely the Court of Appeal will wish to reconsider the judgment of this three-person tribunal in a specialist jurisdiction.
55. The application is refused.