United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DR J MEHTA (The Appellant in Person)
For the Respondent	MR M SHERIDAN (Solicitor) Messrs Beachcroft LLP Solicitors 100 Fetter Lane London EC4A 1BN


 


SUMMARY

Time Limits – Just and equitable extension

Practice and Procedure

Two appeals.

In (1) Dr Mehta appealed against the Tribunal’'s conclusion that it was not just and equitable to extend the time limit for his discrimination claims. Held that time ran from the date determined by the Tribunal; the Tribunal had considered his explanations for delay including his health and alleged insufficient information and had taken into account all relevant factors. The Tribunal had reached decisions which were open to them.

In (2) Dr Mehta objected to the introduction of a new lay member at a costs hearing at which the Respondents were awarded costs of that and an earlier hearing. It held that the introduction of the new member created no risk of injustice; and there was no evidence that the new member had not been correctly appointed.
 


HIS HONOUR JUDGE BURKE QC

The History of these appeals

1. There are two appeals before us, brought by Dr Mehta against two decisions of the Employment Tribunal sitting at London Central. The first appeal relates to the decision of the Tribunal, contained in a Judgment sent to the parties with written reasons on 22 March 2005, that Dr Mehta’'s applications to the Tribunal - on the grounds that he had been the subject of direct and indirect discrimination and victimisation on the part of the Respondents, who are described as the University of London and the Deanery of Postgraduate Department of General Practice Education - had been presented to the Tribunal out of time and that it was not just and equitable to extend the time. The Tribunal which made that decision consisted of Mrs Walker as Chairman and Mr Burke (no relation to the Judge presiding over this panel of the Employment Appeal Tribunal) and Mr Cornelius as lay members.
2. The second appeal relates to the decision of the Tribunal contained in a second Judgment, sent to the parties with written reasons on 12 August 2005, that Dr Mehta should pay the sum of £1883.78 to the Respondents by way of costs. The Tribunal which made the costs decision consisted again of Mrs Walker and Mr Cornelius, the third member was not Mr Burke, but was Mrs Ihnatowicz.
3. At the hearing of these appeals, pursuant to rule 3(10) of the Employment Appeal Tribunal Rules on 8 February 2006, all the grounds of appeal against those decisions originally put forward by Dr Mehta were dismissed. However, both appeals were allowed to go forward to a full hearing on the basis, and solely on the basis, of amended grounds which were on that day put before the President, who heard the rule 3(10) hearing. There are two such amended grounds in the case of the first appeal against the first decision, and one such ground in the case of the second appeal against the costs decision. Subject to one issue to which we will come, no other grounds are today open for argument or have been argued before us by Mr Futter, who has represented Dr Mehta on the instructions of the Free Representation Unit, or by Mr Sheridan, who has appeared on behalf of the Respondents. We are grateful to Mr Futter and Mr Sheridan for their concise and helpful arguments and to Mr Futter for taking on these appeals on a pro bono basis.

The just and equitable appeal

4. On 8 August 2003, Dr Mehta submitted an application to the second Respondents, who are a body within the University of London responsible for administering the training of doctors wishing to train in London to become general practitioners, for a training post. There is a shortened two-year vocational course and a regular three-year such course. Dr Mehta was informed that he could not qualify for the former and pursued his application for the latter. The Tribunal found that, on 6 October 2003, he received a letter from the Respondents which informed him that his score “"was insufficient to be invited for interview”". He was thus informed that his application had been unsuccessful. Dr Mehta claimed that, on 12 December, he had written to the second Respondents asking for detailed feedback and for other details as to how and why his application had been dealt with as it was and that he had not received the details which he had thus sought. It was the Respondent’'s case that no such letter had been received. The Tribunal made no finding as to whether a letter of 12 December had been sent or received, for reasons to which we will come. No copy of a letter of 12 December was put before the Tribunal.
5. Dr Mehta’'s originating application or originating applications – it is not clear whether there were one or two and it does not matter for the present purposes – was, or were, presented to the Tribunal on 13 January 2004. In addition to the discrimination and victimisation claims to which we have referred, his application put forward other claims, including claims based directly on breach of the provisions of the European Convention of Human Rights which it is not necessary to set out in detail. The Respondents asserted (1) that the originating application was out of time, having been presented after more than three months had elapsed from 6 October 2003, and that it was not just and equitable that the prima facie three month time limit be extended, and (2) that the other claims should be struck out because the Tribunal had no jurisdiction to hear them.
6. It is clear from the Tribunal’'s first Judgment that the principal basis on which Dr Mehta argued that it was just and equitable to extend the time limit was his poor health. The Tribunal dealt with that and other issues relating to the exercise of their discretion in detail in their Judgment and concluded, at paragraph 7, that Dr Mehta’'s health did not in any way prevent him from making an application to the Tribunal in time, or from taking advice if he needed it.
7. The Tribunal recorded in that paragraph that Dr Mehta had also relied on his lack of knowledge. They were referring to his claimed lack of knowledge about the process which led to the decision conveyed to him in the letter of 2 October from the Respondents, which he received as the Tribunal found, on 6 October. At paragraph 9, the Tribunal said this:

“"Furthermore, we have considered the fact that there was no information needed by Dr Mehta to bring a claim, beyond the fact that he had been rejected, and that as a factual matter he considered his application was strong enough to succeed. It would have been perfectly open to him to have submitted a valid claim at that time merely recording those facts and therefore there was no further information that he needed in order to bring a claim.”"

8. The Tribunal went on to say, at paragraph 10, that it was clear that, from as early as 1 October, Dr Mehta was considering some form of action. They were referring to a letter from Dr Mehta to the Respondents dated 1 October, in which he said:

“"I am very concerned that my application form may not have been sufficiently and properly assessed by the recruitment committee and am interested to know the status of my application.”"

In an earlier letter, of 3 September, he had asked that, in considering his application, the Respondents should consider his human rights and the Equal Treatment Directive.

9. The Tribunal went on to consider various authorities cited to them and to conclude, at paragraph 15, that in the circumstances it was not just and equitable to extend the time limit.
10. The grounds of Dr Mehta’'s appeal against that conclusion are that the Tribunal erred in law in concluding, at paragraph 9, that he needed no further information to enable him to bring a claim beyond that which was contained in the letter of 2 October and in failing to consider whether Dr Mehta was justified in not pursuing his claim until he had the further information which he sought by his alleged letter of 12 December, and by failing to make a finding as to whether the letter of 12 December, of which the Respondents denied receipt, had been sent.
11. There are two preliminary difficulties which lie in Dr Mehta’'s way in pursuing his appeal on those grounds. The first is that the Respondents assert that it was never Dr Mehta’'s case before the Tribunal that time did not begin to run until Dr Mehta had received a response to his request, if made, for further information. The second is that Dr Mehta did not in fact wait for a response to that request before presenting his originating application; for it was his case that the Respondents had not replied to that letter; he so asserted, in the originating application which he presented on 13 January.
12. As to the first of those two difficulties, the Tribunal were requested by the EAT to answer two questions, and did so on 13 February. The first question was this:- did the Appellant submit at the hearing on 17 January 2005 that the time for submitting his originating application ran from any date other than the date he alleged he received the letter from the Respondent of 2 October 2003? To that question, the Tribunal answered “"no”". The Appellant contended that there was no evidence as to the date of the letter being posted and he did not receive the letter in question until a later date (that of course is a reference to the letter of 2 October) but he did not make any submissions about there being any other trigger for the time limit.
13. The second question was in relation to the question:- did the appellant also submit that the Tribunal should consider if he needed to wait for a response to his letter allegedly sent to the Respondent on 12 December 2003 before submitting his originating application? The answer was that no such submission was made but that in evidence the Appellant did say he thought he would be getting answers and that he also gave evidence that he had seen the Hammersmith Citizens Advice Bureau after Christmas - in early January - and they advised him of the time limit of three months.
14. Mr Sheridan, on behalf of the Respondents, does not seek to argue today that, in so far as the points taken on Dr Mehta’'s behalf in this appeal are new points, he should be barred from taking them; and we have therefore heard the parties’' submissions. At first, we were of the view that the first point went to the exercise of the Tribunal’'s discretion, rather than to the time from which the three month primary time limit embodied in statute started. But Mr Futter has disabused us of that error; he submits that the three month period could only have started when Dr Mehta had sufficient information to appreciate whether he had a claim or not and that the letter of 2 October was insufficient to start time running. Time did not run until further information was obtained, which it never was, and any decision to the contrary was perverse.
15. In our judgment, that point, even if it had been taken before the Tribunal, could not have succeeded and does not succeed on appeal. Time runs, for the purpose of the three month time limit, from the date of the act of discrimination or victimisation relied upon, see section 76(1)(a) of the Sex Discrimination Act 1975 and section 68(1) of the Race Relations Act 1976. In this case, the act relied upon as constituting discrimination and victimisation is the Respondents’' failure to shortlist Dr Mehta. That act occurred, at the very latest, on 6 October, when the letter of 2 October was received. Although it could perfectly well be argued that it occurred on 2 October when the decision was actually made, it matters not for present purposes which date is taken. If and insofar as it was sought to argue that the three month time limit was not exceeded in this case, as the first ground in the amended Notice of Appeal appears to suggest, there is, in our judgment, nothing in that argument. The three month time limit – albeit, as the Tribunal set out in their Judgment, it was only exceeded by a week - had expired when three months from 6 October at the latest had passed; and the originating application or applications was or were not presented until 13 January. If, and insofar as the Tribunal was addressing those points, there was no perversity on their part in treating the originating application or applications as having been presented out of time.
16. In his skeleton argument before us, Mr Futter has put the point in a different way, namely, that the conclusion which the Tribunal reached at paragraph 9, that Dr Mehta needed no further information to commence his claim, was perverse. If that is an argument that the Tribunal ought to have concluded that it was just and equitable to extend the time, then it is not a point which can be distinguished from the second ground in the amended Notice of Appeal to which we will now turn. We say that because the second ground in the Notice of Appeal is that the Tribunal came to a perverse conclusion in considering that it was not just and equitable to extend the time limit because Dr Mehta did not have sufficient information. The Tribunal, it is said, could not have considered the effect of the inadequacy of the information Dr Mehta had without making a finding as to the sending of the letter of 12 December, albeit Mr Futter accepts that it was not received by the Respondents. Mr Futter acknowledges that the Tribunal were exercising a discretion in deciding whether or not it was just and equitable to extend the time limit under section 76(5) of the 1975 Act and section 68(6) of the 1976 Act. He accepts that that discretion is a wide one; but he submits that it should be exercised by the Tribunal by consideration of the factors originally set out in section 33 of the Limitation Act 1980 but imported into this branch of employment law by the decision of the EAT in the well-known case of British Coal Board v Keeble [1997] IRLR 336. Mr Futter accepts that in the subsequent case of Southwark London Borough Council v Afolabi [2003] EWCA Civ 15, the Court of Appeal, at paragraph 33 of their Judgment, indicated that it was not necessary for a Tribunal to go slavishly through those factors in each case; but he says, relying on Afolabi, that a Tribunal must consider each of those factors insofar as each is relevant to the circumstances of the individual case; and he points, as examples of the correct approach to two decisions of the EAT, in both of which cases an appeal was allowed where the Tribunal had failed to consider the issue of prejudice. Those two cases were A v B, (unreported EAT/0898/02) a decision handed down on 23 June 2003, and Baynton v South West Trains (unreported EAT/0848/04) decision given on 22 June 2005.
17. The factor which it is said the Tribunal omitted to consider or consider properly in this case is the absence of sufficient information and the effect, if it was sent, of the letter of 12 December. The Tribunal, it is argued, could not properly evaluate that factor without finding whether the letter had been sent and whether, if sent, the absence of the information sought was a matter which should have persuaded them to extend the time. It was insufficient for the Tribunal, it is submitted, simply to say, as they did in paragraph 9 of their decision, that no further information was needed.
18. Ably as those arguments were presented by Mr Futter, we cannot accept them. The Tribunal were alive to Dr Mehta’'s point that he did not have sufficient knowledge. They referred to it as part of his reasons for delay at paragraph 7 and specifically addressed it in paragraph 9. They set out at paragraph 2(7) what further information Dr Mehta said he was seeking, by quoting from his originating application in which he had summarised his letter of 12 December 2003. They did it that way because they did not have a copy of any such letter. They did not need to make an express finding as to whether that letter was sent or received, because, on the hypothesis that it was sent, they nevertheless decided that Dr Mehta had enough information on which to conclude that his claim was strong enough to succeed on receipt of the letter of 2 October. It was, in our judgment, open to the Tribunal so to conclude. There was material before the Tribunal which supported that conclusion. It is clear from the earlier letter, or letters to which we have referred, that Dr Mehta had well in mind the issue of a claim and the issue of discrimination; and the Tribunal were entitled to take that into consideration. It was material upon which they were entitled to rely. It was open to them to conclude that he needed no further information beyond that which he had when he received the letter of 2 October, as they did. In our judgment the conclusion that the Tribunal reached on this issue was one which was open to them on the material before them, and was not one which no reasonable Tribunal could have reached, which was the basis on which perversity was put by Mr Futter.
19. For those reasons, the first appeal fails.

The costs appeal

20. The Tribunal’'s decision, sent to the parties on 22 March 2005, covered two separate issues. The first was that which we have just been considering, namely whether the time limit for the presentation of Dr Mehta’'s discrimination claim should have been extended. The second was whether his other claims, insofar as they were free-standing claims, ought to be struck out on the basis that the Tribunal had no jurisdiction to consider them. The Tribunal considered the first of those issues on 17 January, and gave an oral decision on that day. They then proceeded to consider the second issue on that day and on 4 March. Dr Mehta accepted that some of the other claims were not within the Tribunal’'s jurisdiction. As to the remainder, the Tribunal decided against him and gave an oral decision to that effect; and their reasons for that decision are set out in the first of the two written decisions to which we have referred.
21. When the Tribunal had given their oral reasons, or at least announced their oral decision, Dr Mehta, to put the matter neutrally, left the Tribunal room before any further steps could be taken. The Respondents then made an application for costs. The Tribunal declined to consider that application in Dr Mehta’'s absence, and adjourned it to 20 May 2005. On that day, one of the two lay members who had been part of the Tribunal on 17 January and 4 March, did not attend the Tribunal and could not be contacted. Dr Mehta was asked, but did not agree, to the Tribunal proceeding with two members. He is, of course, not to be criticised for that and has not been. Those two members heard submissions as to the way forward and decided to proceed with a new lay member replacing the missing lay member. The reasons for their decision are set out in paragraph 8 of the second Judgment in these terms:

“"8. On 20 May 2005 one of the two lay members, Mr Burke, did not attend the Tribunal and could not be contacted. Accordingly the remaining members, being Mrs Walker, the Chairman, and Mr Cornelius, notified the parties that they had been unable to locate Mr Burke and that there were two options. The first option was for the case to continue on the basis that it was heard by two members. That option could be pursued if both parties agreed. Dr Mehta immediately made it clear that he did not agree. The Tribunal explained that second option was for the case to be heard by a panel consisting of the two existing members and a new member and that the Tribunal would not reach a conclusion on this without hearing submissions from the parties. Submissions were made and the Tribunal having considered the matter decided, in accordance with the overriding objective, that the interests of the parties were best served by proceeding with the claim and a new member should be asked to join the Tribunal panel. After a short delay, a new member was located being Mrs Ihnatowicz.”"

22. A new lay member was found. The costs hearing took place. The Tribunal received and considered a witness statement from Dr Mehta, written and oral submissions from Dr Mehta, and oral evidence from Dr Mehta which continued, according to the Respondents, for an hour and according to Dr Mehta’'s case, for 54 minutes. There were also written and oral submissions from the Respondents. The nature of those submissions is set out in the relevant judgment. At paragraph 10, the Tribunal describe the thrust of the Respondents’' case as being (1) that Dr Mehta’'s opposition to the striking out of those of his further claims which he had not withdrawn was misconceived and unreasonable, (2) that Dr Mehta’'s conduct on 4 March in walking out of the Tribunal had been abusive, disruptive and unreasonable, and (3) that the Respondents had been willing for the costs issue to be determined on paper but Dr Mehta had sought an oral hearing.
23. Dr Mehta’'s submissions were that he had been unsure as to whether the relevant claims, in particular the claims based on the Human Rights Act, were properly brought before the Tribunal and had expected the Tribunal to guide and advise him, but that the Tribunal had not responded to his request for advice and should themselves bear any costs awardable. He further submitted that the Respondents had not identified the basis of their costs application and that a costs schedule had been received too late. He drew attention to his appeal against the Tribunal’'s earlier decisions and asked that the Tribunal should adjourn the costs hearing until that appeal had been heard.
24. The Tribunal correctly directed themselves, as to the award of costs, to rule 14 of schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, which were the relevant rules at the material time. The Tribunal held that Dr Mehta’'s actions on 4 March 2005 were not vexatious, abusive or disruptive. They said that, on occasions, Dr Mehta’'s behaviour was difficult and may even have been disrespectful, but that the Tribunal was aware that as a litigant in person it is extremely difficult to conduct complex proceedings. They concluded, however, that the bringing and pursuing by Dr Mehta of the remaining claims before the Tribunal were misconceived and unreasonable. The Tribunal, being a creature of statute, had jurisdiction only to determine complaints specifically identified by statute as falling within the Tribunal’'s jurisdiction, but Dr Mehta had pursued these claims despite having had opportunities to withdraw them, or to withdraw those which had not been earlier withdrawn.
25. They correctly rejected, at paragrapaph 25(2), the contention that the Tribunal had a duty to advise and guide Dr Mehta and at paragraph 25(3) the contention that the Tribunal ought to have adjourned the costs hearing until any appeal had been disposed of. They also rejected the complaint that the costs schedule had been provided too late. They asked themselves at paragraph 26 what costs had been incurred as a result of the unreasonable and misconceived conduct of the claim on Dr Mehta’'s part, as to which they had already made their findings. They concluded that the hearing on 4 March 2005 was entirely devoted to and would have been unnecessary but for Dr Mehta’'s remaining claims and that, therefore, the costs of that day were attributable to Dr Mehta’'s unreasonable conduct.
26. They then went on to consider Dr Mehta’'s conduct at the end of the 4 March hearing. It is unnecessary to go into details of what they found because, having found that Dr Mehta’'s conduct was not vexatious, abusive or disruptive, they did not in fact make any finding as to costs dependent upon that conduct. What they did was to find that the costs hearing was itself caused by and attributable to Dr Mehta’'s unreasonable conduct in pursuing the further claims which we have described. The Tribunal therefore awarded the Respondents their costs of the hearings on 4 March and 20 May in the sum claimed.
27. Dr Mehta’'s appeal against that decision is based, so far as the amended Notice of Appeal is concerned, solely on the decision of the Tribunal to proceed on 20 May without the original lay member who was not present on that day. It is said that the new Tribunal were required to make factual determinations as to what had occurred on 4 March and there was no reason why the hearing could not have adjourned to enable the missing lay member to attend at a later date. In his absence, a new member could not be expected to carry out a full role without being dominated, in relation to what had happened on 4 March, by the continuing lay member and by the Chairman, who had of course been present on that day.
28. In his skeleton argument, and today, Mr Futter has raised two further points. The first is that the substituted lay member could only become part of the Tribunal if appointed to do so by the President, Vice-President or Regional Chairman of the Tribunal, pursuant to Rule 9(4) of the 2004 Rules, and there is no evidence of any such appointment. The second is that the Tribunal erred in law in applying the decision of the Court of Appeal in Kovacs v Queen Mary and Western College & Others [2002] IRLR 414 and in failing to consider Dr Mehta’'s means.
29. Neither of those two points was canvassed at the Rule 3(10) hearing before the President. Dr Mehta was given permission to proceed to a full hearing only on the grounds which we have just summarised and not on either of those two further grounds.
30. So far as the second further ground is concerned, there was, if it were open to be run before us, nothing in it, and Mr Futter has conceded that that was so. The transitional provisions were such that the old costs regime and not the new costs regime applied in this case, and Kovacs was a Court of Appeal authority by which the Tribunal were bound.
31. As to the first further ground, Mr Futter accepted that the point was not in the original Notice of Appeal or in the amended Notice of Appeal in respect of which permission to go to a full hearing was given at the Rule 3(10) hearing. He sought our permission to develop the point before us, nevertheless. Mr Sheridan submitted, firstly, that there had been no application to amend to add this new point and, secondly, that it was far too late to do so. The EAT practice direction requires an Appellant to amend as soon as possible; the Notice of Appeal here was dated 23 September 2005; the amended Notice of Appeal and Rule 3(10) hearing were on 8 February 2006; and even at the date of Mr Futter’'s skeleton, on 13 June, no application to amend was made; he, Mr Sheridan, only learnt that an application that was going to be made or that the point was going to be taken this morning.
32. It was submitted, thirdly, that there was no explanation for the delay, and, fourthly, that the point created prejudice, because the respondents would feel obliged to make enquiries of the Tribunal or the Chairman as to any issue as to the appointment of the new lay member, which enquiries of course could not be carried out today; the appeal would therefore have to be adjourned while those enquiries were carried out. Finally Mr Sheridan submitted that there were no merits in the point in any event.
33. In our judgment, Mr Futter’'s application for permission to argue this point should not succeed. There has been no explanation of the delay; and we accept Mr Sheridan’'s point about prejudice; but most important of all is our view that there is no merit in the point that Mr Futter now seeks to take. When asked, Mr Futter indicated that the only evidence that there had not been a proper appointment of the new lay member lay in the fact that no statement as to her appointment was to be found in the decision. None of the members of this EAT has ever seen any decision of a Tribunal which said anything about the appointment of any of the members. Speaking as the President alone for the moment, I have seen many decisions in which there has been a new Tribunal or membership has been changed for one reason or another without any statement as to the appointment of the Tribunal or any member of it appearing therein.
34. As to any statement as to the appointment of either the legally qualified Chairman or either of the lay members, one would not expect to see any such statement. No inference can be drawn as to the presence or absence of any appointment of the new lay member from the absence of any reference to her appointment in the decision. When we asked Mr Futter whether further enquiries had been made on his side as to her appointment, the answer was negative.
35. Mr Sheridan submitted that the correct appointment of the members who took part in a hearing in front of the ET was “"a given”", that is, an expression of the principle that the appointment of somebody who holds a judicial or quasi judicial office is taken to be correct until the contrary is shown. The old Latin principle is “"omnia praesumuntur rite esse acta”". We are not supposed to use Latin any more. The Latin expression, to those who understand it, may appear rather more pithy than any way in which we can express the principle in English; but in general terms it means that in the case of an issue such the appointment of a Judge or a member of a Tribunal, the validity and correctness of his or her appointment is presumed, unless the contrary is shown. The contrary has not been shown. No attempt has been made to demonstrate the contrary; and in our judgment, the point with which we have now in effect dealt with in substance in any event, has no merit. Thus we do not give leave for it to be argued, and if we had given such leave, we would in any event have rejected the argument for the reasons that we have set out.
36. We therefore turn to the points in respect of which Dr Mehta was permitted to present arguments on this appeal. The first way in which those points were developed by Mr Futter was this. He submitted that the Tribunal had to act fairly pursuant to Article 6 of the European Court of Human Rights. We indicated to him that, whether under Article 6 or under general principles, we accepted and would proceed on the basis that the Tribunal were under a duty to act fairly. He submitted further that we should have in mind the principle expressed by the House of Lords in Lawal v Northern Spirit Ltd [2003] UKHL 35 that the Tribunal should act in such a way as to consider whether a fair-minded and informed observer would conclude that there was a real possibility of bias, or in this case, unfairness.
37. We do not for one moment disagree with the principles established in Lawal, by which we are, of course, bound. This is not, however, a case of bias, or perceived bias. The question for us is whether there was any real unfairness in the way in which the Tribunal proceeded. What is said is that the substitute member, not having been present at the hearing on 4 March, could not properly determine any question of fact which fell to be resolved at the costs hearing as to what had happened at the hearing on 4 March. That question would have had to have been resolved by the two members of the Tribunal who were present and the third member; and what the Tribunal should have done was to have adjourned and not gone on with a new member. Mr Futter submits that the Tribunal only considered the alternatives of going forward with two rather than three members or appointing a new third member and did not consider an adjournment.
38. We do not accept this submission. It is clear from the penultimate sentence of paragraph 8 that the Tribunal did consider whether there should be an adjournment generally; and they also had adjournment specifically in mind when dealing with Dr Mehta’'s point that the hearing should in any event be adjourned because of his pending appeals. In paragraph 8, the Tribunal said that they decided “"…in accordance with the overriding objective, that the interests of the parties were best served by proceeding with the claim...”". That indicates with clarity, in our judgment, that the Tribunal considered not proceeding with the claim and decided, in accordance with the overriding objective - and that would include of course the interests of disposing of the issues before them fairly and expeditiously - that they should proceed with a new member. If, furthermore, one looks at paragraph 25.3 of the decision, one sees that, having decided that there should not be an adjournment by reason of the pending appeal, the Tribunal asked Dr Mehta whether he wanted to make a further application to the Tribunal for an adjournment; and he declined to do so. In our judgment, the Tribunal’'s approach as to the way in which they proceeded was not flawed by any failure on their part to consider the possibility of adjourning, finding the missing member and proceeding with him on some subsequent day.
39. The second submission was that there were issues of fact as to what happened in March which could not properly and fairly determined by a Tribunal consisting, in effect, only of two members who were present and one member who was not present on that occasion. We do not accept that submission either. It is clear to us that, at the costs hearing, the Tribunal heard substantial and new submissions from Dr Mehta, both orally and in writing; they heard a great deal of evidence from him in support of his case that he was not feeling well when he left the Tribunal hearing on 4 March and on other matters. The issue as to why he had continued to press his claims which were eventually struck out was fully debated before them; and it was on the basis of Dr Mehta’'s unreasonable and misconceived pursuance of those claims that the costs order was made.
40. In his skeleton, Mr Futter referred to what he called “"the notion”" that the Tribunal had been in a position to complete the hearing of the issues before them in January if Dr Mehta had not persisted in the claims which were eventually struck out; but there has been no dispute that that was indeed the case. The Tribunal’'s decision on costs was not dependent on their making a finding as to what had actually happened when Dr Mehta walked out on 4 March. They did indeed determine what the facts of that were, and determined that he had not walked out because he was ill; he had walked out having said that he had no faith in the Tribunal; but they did not then make any order which depended on that finding of fact, although, since the facts had been fully investigated by oral evidence and otherwise before them, they could entirely properly have done so.
41. For these reasons we can see no basis on which it can be validly said that the course which the Tribunal took at the costs hearing was in any way unfair or legally flawed. In our judgment, it was not; and the second appeal also fails.
42. Accordingly, both appeals are dismissed.