United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARK AFEEVA (of Counsel) Instructed by: Messrs J R Jones Solicitors 58 Uxbridge Road Ealing London W5 2ST
For the Respondent	MR ANDREW McGRATH (of Counsel) Instructed by: Shropshire County Council Legal Services The Shirehall Abbey Foregate Shrewsbury SY2 6ND


 


SUMMARY

Practice and Procedure – Striking out/dismissal – Bias, misconduct and procedural irregularity

An Employment Judge correctly struck out the Claimant's claim for a remedy following a judgment in his favour of race discrimination when he did not actively pursue it for three years and a fair trial was impossible.

On the allegations of unfairness, on which the EAT is the tribunal of fact, the EAT preferred the evidence of, and found for, the Respondent. The judge, whose majority Judgment on liability was not appealed, did not conduct an unfair hearing, nor was he disqualified for hearing the application by reason of his holding a preliminary view of the Claimant's remedy, or not disclosing it.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case considers the correctness of an Employment Judge's decision to strike-out the Claimant's case for a remedy following an order in his favour for race discrimination, on the ground that the case was not actively pursued and a fair trial was impossible. We will refer to the parties as the Claimant and the Respondent.
2. It is an appeal from a judgment of Employment Judge Thompson sitting alone at Shrewsbury on 9 November 2006, registered with reasons on 18 December 2006. Exceptionally, this comes before a three member EAT, in accordance with a direction given under Employment Tribunals Act 1996 section 28(4). The Claimant represented himself and today has the advantage to be represented by Mr Mark Afeeva of Counsel. The Respondent was represented throughout by Mr Andrew McGrath of Counsel.
3. The Claimant was born in 1956 in Ethiopia. He has a PhD in space engineering from the University of Bradford. He claimed race discrimination. The act of discrimination took place on 1 September 1999 when the Respondent refused, after interview, to appoint him to a lectureship. After a hearing in 2000 lasting eight days including two in Chambers an Employment Tribunal chaired by Employment Judge Thompson, by a majority which included himself, upheld the Claimant's claim, for reasons registered on 20 November 2000. Seven years later, the judge held that the remedy was not actively pursued, it was impossible to conduct a fair hearing and he struck out the claim. The Claimant appeals against that judgment. Directions sending it to a full hearing were given in Chambers by Elias J President.

The legislation

4. The substantive law applied in this case is section 4(1)(c) of the Race Relations Act 1976 which makes it unlawful for a person to discriminate against another on racial grounds by refusing to offer him employment. The remedies are a declaration, compensation and a recommendation that the Respondent take certain action: see section 56. The award may include compensation for injury to feelings: section 57(4). The Claimant has the declaration in his favour and a recommendation is not sought so the sole issue is compensation. Although not generating any specific remedy, the majority of the Employment Tribunal upheld the Claimant's criticism of the Respondent for institutional racism, as defined in the Macpherson Report of the Stephen Lawrence Inquiry as "the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origins". Awards under the Race Relations Act are uncapped.
5. The adjectival law is set out in the Employment Tribunals Rules 2004. Wide powers of case management are given by Rule 10 to Employment Judges and Employment Tribunals. Rule 18 enables an Employment Judge at a PHR to strike-out only in the following circumstances (so far as is relevant to claimants):

"18. (7) Subject to paragraph (6), [an Employment Judge] or tribunal may make a judgment or order:-

(b) striking out … all or part of any claim … on the grounds that it is scandalous, or vexatious or has no reasonable prospect of success;

(c) striking out any claim … on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant … has been scandalous, unreasonable or vexatious;

(d) striking out a claim which has not been actively pursued;

(e) striking out a claim … for non-compliance with and order…

(f) striking out a claim where the [Employment Judge] or tribunal considers that it is no longer possible to have a fair Hearing in those proceedings."

6. Before taking the above steps notice is required unless an opportunity is being given to a party to give reasons why the order should not be made (Rule 19). No issue arises as to the giving of notice. There is an issue as to the fairness of the PHR. This appeal concerns rule 18(7)(d) - active pursuit and (f) - fair hearing.

The facts

7. In the more than eight years since these proceedings were launched on 28 September 1999, four features emerge, which are relevant to the fair hearing point, and to our findings of fact on apparent bias, irregular procedure and new evidence:

a. The Claimant makes frequent abusive allegations of bias and apparent bias against the judiciary.

b. He is a prolific litigator in Employment Tribunals, the EAT and the Court of Appeal, almost always without success.

c. He has a patchy career history, partly due to dissatisfaction expressed by actual and potential employers with his references.

d. He has a medical condition described by the following differential diagnosis, thus far unchallenged:

"Mr Abegaze appears to have a mild depressive disorder. He also appears to have paranoid ideation against hospital staff, and is also prone to have aggressive outbursts without provocation. He is also rather grandiose about his qualifications and claims of taking up law suits against various organisations."

8. Those manifestations have been clear in proceedings before the Employment Tribunal, where the Employment Judge described his conduct (unappealed) as bizarre, before the EAT and probably towards at least one witness Mr Mosley. It will be necessary to reach conclusions on all four of the above themes. It is also important to read this judgment in the context of three other related appeals. They are UKEATPA/1764/03 of 10 November 2004 Burton J, President, "the 2003 adjournment appeal"; Southeast Essex College v Abegaze [2006] ICR 469 HHJ Birtles and members, "the reference appeal"; and UKEATPA/1805/06, my judgment in three appeals "the 2006 postponement appeals".
9. The first directions in this case were given following a hearing on 16 December 1999 which included the following:

"All witnesses will give evidence from prepared witness statements which shall contain all of their evidence in chief."

There was no indication that the hearing would be split as between liability and remedy and so the parties attended on 22 May 2000 for a total of eight days before the reserved decision was issued on 20 November 2000. It dealt only with liability. The Tribunal found that it would be difficult to make any recommendations in view of the passage at time and that decision is not the subject of an appeal. It envisaged a remedy hearing.

10. There are several things to note about the exceptional chronology in this case. Between 16 December 1999 and 18 December 2006, the Shrewsbury Employment Tribunal, almost entirely on the initiative of Employment Judge Thompson, has case managed the complex proceedings. The judge has conducted hearings with and without lay members, and produced carefully reasoned judgments for the decisions made. This seven-year period can be divided into two: September 1999 to October 2003, and October 2003 to April/May 2007. This represents the date on which, if not struck out, the claim for remedy would have been heard. No contentious issue arises in respect of the first period. So the claim presented on 28 September 1999 was determined 14 months later on 20 November 2000, with remedy due in October 2003.
11. It is accepted that the Claimant suffered illness. By 13 March 2003 the Tribunal wrote to the parties expressing concern, and that it was "no longer… in the interest of either party for the remedy hearing to be delayed further". It was envisaged that the listing would take place from 1 July 2003 "to give the Claimant a full and clear 3 calendar months in which to further recover his health and prepare for the hearing". Before the remedy hearing, which was fixed for 13 October 2003, the Respondent had sought to have the Claimant examined by its consultant psychiatrist. The Claimant expressed his willingness to be examined, a timetable was produced for the production of reports and the case was listed to be heard not before 1 April 2004.
12. By November 2006, as a result of the Claimant's fault, the earliest date for a hearing would be April/May 2007, four years from its first listing and three years from its adjourned re-listing. These periods of time are correctly categorised as delays and they are considerable and inordinate, as the Employment Judge found. The delays from either March or October 2003 to December 2006 were found to be "solely down to the Claimant" (reasons para 4.19) and this is not challenged. While the Respondent does not say that the Claimant was at fault for the earlier period 2000-2003, it is correct to categorise it as a delay due to the Claimant's illness.
13. It is important to focus therefore on the period between October 2003 and the strike-out hearing in November 2006 with the projection forward to April/May 2007 when deciding whether there was inactive pursuit by the Claimant of his claim, and a fair trial was impossible. There are several landmarks during that period. The October 2003 hearing to determine remedy was postponed on the Respondent's application because it could not respond to the Claimant's evidence. After the order of 16 December 1999 and a fresh order for the remedy hearing dated 19 May 2003, the Claimant produced for the Respondent in September 2003 a report of Dr David Ndegwa, consultant forensic psychiatrist. Dr Ndegwa attributed the Claimant's depressive illness to his rejection for the post on 1 September 1999. He also produced a short report dated 3 September 2003 from Mr J Rubin, consultant ENT surgeon, and Mr Rubin attended at the hearing prepared to give evidence. Mr Rubin opined that the depression made the Claimant vulnerable to viral infection leading to loss of balance and tinnitus. The Respondent was unable to deal with this nor with the GP's notes referred to by Dr Ndegwa which it had not seen, nor four further reports by three consultant psychiatrists produced on the day of the hearing. Also produced was a complex report of 21 pages from an employment expert indicating difficulty for the Claimant in obtaining work. The Tribunal's response was

"We cannot do justice without there being an opportunity for the Respondent to obtain its own medical and employment report. …. Frankly, the Respondents are facing a considerable claim by Dr Abegaze and the chain of causation is going to be absolutely crucial to the decision that we make."

14. Arrangements were set en train for the examination of the Claimant by the Respondent's psychiatric expert but he withdrew his consent and, on 3 December 2003, the Employment Judge imposed a stay until the Claimant agreed to attend the appointment. The terms of the stay were varied on 8 April 2004, indicating that it would now remain in place until the Claimant had seen the Respondent's expert. This was because the Claimant was now disputing that there was "need for additional further additional respondent's medical evidence" (reasons para 2.17). There never was any Respondent's medical evidence. The Claimant never did attend for medical examination although he did attend his own consultant Dr Ndegwa on 16 February 2004 and various tribunal and court proceedings.
15. We assume the stay continued in place. It was punctuated by two applications by the Respondent to strike-out the claim with directions that the Claimant should show cause in addition to the one which led to the actual striking-out in November 2006. The correctness of the judgment of the three member Tribunal in October 2003 was upheld on the dismissal of the Claimant's adjournment appeal by Burton P on 10 November 2004 at a rule 3(10) hearing, and refusal of permission to appeal from it by Smith LJ on 8 April 2005..
16. Lest there be any doubt about that in the Claimant's mind, the Employment Judge recorded correspondence which he had seen in full between the Claimant and the CRE, including a letter of 29 October 2005 which said this:

"I am instructed that the Claimant now feels capable of co-operating with all parties and wishes to proceed with the remedies hearing of this matter as quickly as possible.

…

While the respondent's postponement application was initially opposed by the claimant, it is conceded that the decision of the Tribunal to postpone the remedies hearing to allow the respondent to obtain its own medical evidence was entirely fair in all the circumstances and particularly given that the issue of causation in relation to the claimant's illness is in dispute. In these circumstances, the respondent would perhaps not have had a fair hearing on the issue of remedy without being afforded the opportunity to obtain its own evidence on this issue. However, I am instructed that the claimant is ready, willing and able to present to a medical expert, nominated by the respondent for the preparation of a report. I am further instructed that the claimant wishes to co-operate fully with the Tribunal and with the respondent to ensure that if this matter is to proceed to a remedies hearing, it can do so with alacrity."

Nevertheless, the Respondent immediately issued an application for a PHR to strike-out the claim. In due course, the CRE parted company with the Claimant as it was "professionally embarrassed" and the strike-out PHR was fixed for November 2006. In simple terms, the concession by the CRE is that the Claimant had not co-operated with the Tribunal and the Respondent until 29 October 2005 i.e. two years after the aborted remedy hearing. During that time he had, on the contrary, attended Dr Ngedwa for a report, issued Notices of Appeal, applications for review and an application to strike-out the Respondent, and a fresh (victimisation) claim against the Respondent. The Respondent contends there was no evidence to support the CRE's implied assertion that the Claimant was not capable of attending a medical examination. We have seen none. These concessions are important. They come to this: the Claimant was not incapable and did not co-operate with the Tribunal between October 2003 and October 2005. Without examination by the Respondent's expert, a fair hearing was impossible.

The 2004 victimisation claim

17. The PHR was in two parts: strike-out of the remedy in the 1999 claim and strike-out of the 2004 related victimisation claim. Prior to both of them, the Employment Judge dismissed two applications for postponement. The postponement decisions were made over a period of several weeks and ended in a hearing.
18. Having decided that the Claimant was not unfit to attend and the PHR should go ahead, the Employment Judge upheld the application to strike-out the victimisation claim as misconceived. This was a claim made in 2004 and was based upon the protected act of making the 1999 claim and upon reading the witness statement of Mr Alan Mosley. He had given evidence at the substantive hearing in 2000 and was preparing to give evidence at the aborted remedy hearing in 2003. As the Employment Judge found in his 2006 PHR judgment, the gist of Mr Mosley's evidence relates to a telephone conversation now disputed between himself and Mr Spalding. Mr Spalding is principal of the London Electronics College against whom proceedings were also presented by the Claimant in 2004, again unsuccessfully. The victimisation claim was struck-out and I upheld that decision for a range of reasons, which it is not necessary to repeat: see UKEATPA/1805/06.
19. Appeals against those three judgments were rejected on 12 September 2007 under Rule 3(10) at a hearing before me, permission to appeal was refused and a decision by the Court of Appeal on permission to appeal is awaited on the papers.

The 2006 strike-out hearing

20. Pursuant to an order convening a PHR granted on 18 January 2006, and not appealed, the hearing took place on 9 November and 11 December 2006. It was to hear the Respondent's application to strike-out the claim for a remedy on the three grounds in Rule 18(7) relied on. The Employment Judge recited the procedural history of this case and it is important for the understanding of his judgment, and ours, to have a clear idea of the passage of time and the events. Although the Claimant had through the CRE agreed that he was capable of co-operating on 29 October 2005, the Respondent did not accept that for reasons which it gave when asked to justify its stance by the Employment Judge on 18 January 2006. In short, the Respondent contended that the claim should be struck-out in the light of the previous events.

Unreasonable conduct

21. The Employment Judge first considered the application that the remedy should be struck-out on the ground that the proceedings had been conducted in a way which was scandalous, unreasonable or vexatious contrary to Rule 18(7)(c). It dismissed the application for reasons which are not the subject of an appeal. The Tribunal found in trenchant terms that the Claimant was "certainly disruptive, abusive and offensive to all concerned" and reflected on its own experience at the liability hearing and "also reading how the Claimant does conduct himself at other Tribunals and even in the EAT".
22. He did not make a finding against the Claimant to strike-out the claim under this sub-rule. The specific ground advanced by the Respondent related to the fact that Mr Mosley had left the Respondent on 13 September 2004 and was not a willing witness "because of his experience at the Claimant's hands". There were two allegations. The Claimant copied the Respondent into letters he had written to the chief executive of the Further Education/Learning Skills Council on 4 and 31 October 2003, also written to the Secretary of State, accusing Mr Mosley of being "the true fascist" and demanding that the Secretary of State "sack the fascists i.e. Mr Mosley". There was no dispute as to the fact of those letters being sent or their contents.
23. The second allegation relied on by the Respondent was this:

"4.5 … There is an assertion by the respondent that on 13 October 2003, following the adjournment of the remedy hearing, whilst the parties were vacating the Tribunal room, the claimant remarked to the respondent's witness, Alan Mosley (sotto voce) that Mr Mosley was "white trash". No evidence was given in support of this assertion. The respondent asks the Tribunal to accept that this probably happened because of the claimant's propensity for such abuse and disruptive behaviour in the conduct of proceedings. Having heard no direct evidence from the respondent about this the Tribunal is not prepared to find that this occurred as a fact.

4.6 We have the matters set out in paragraph 2.48.

4.10 The Tribunal can fully appreciate why Mr Mosley is now not a willing. witness, bearing in mind what the Chairman recollects as his experience with the claimant at the original hearing and. bearing in mind what the Tribunal has now been told during this hearing.

4.11 Whilst this Tribunal does not actually make a finding of fact that the claimant referred to Alan Mosley as "white trash" on 13 October 2003, bearing in mind this Tribunal's experience of the claimant at the previous hearing, and also reading how the claimant has conducted himself at other Tribunals and indeed even in the Employment Appeal Tribunal, it would not surprise the Tribunal if he did make that remark to Mr Mosley. The letters referred to are clearly fact and were sent."

The Tribunal held that it would not be proportionate to strike-out the claim on the basis of that "thoroughly reprehensible" behaviour. It is a finding as to the correspondence and what in reality is a finding in relation to the "white trash" remark. If it had not made that decision it would have gone on, as it said, to ask whether a fair trial was possible notwithstanding those findings. It held the claim would not be struck-out since a fair trial would still be possible despite the unreasonable conduct towards Mr Mosley.

Active pursuit of the claim and fair trial

24. The Employment Judge here held that the delays at least since 2003 were caused by the Claimant's unwillingness to submit to medical examination and the subsequent stay imposed. The judge acknowledged that these delays in themselves would not make it proportionate to strike-out the claim and went on to look at what the effect of the delay was, which was to examine whether a fair hearing was possible. In dealing with that, he looked at alternative ways to enable a fair hearing to take place. He analysed the nature of the remedies and correctly focused on compensation. He then divided that remedy into injury to feelings, personal injury, financial loss to the date of the remedy hearing and subsequent loss. He considered injury to feelings and noted that the Claimant could in 1999-2000 "easily have given cogent evidence as to the injury felt at the time". The judge addressed the issue as whether it was proportionate to strike-out the claim for injury to feelings on the basis that there could be no fair trial - he mentions "proportionate" three times in paragraph 4.30. He then turned to consider the claim for personal injury. Again he twice considered "a more proportionate way of dealing with the matter". The judge focused on the fact that the Claimant had made other claims before other Tribunals and it would be difficult for the medical experts to find what injuries arose from which act of alleged discrimination and which Employment Tribunal finding. This seems to be a direct reference to the medical evidence produced to the 2003 hearing by Dr Ndegwa who reports as follows

"Mr Abegaze…is currently on income support and is concerned about his current financial situation. So far he has been awarded £10,000 in the numerous legal suits he has pursued…he is presently on income support and is also seeking out numerous legal suits against universities in the UK, which thus far has brought him £10,000."

25. A schedule prepared for the 2003 hearing indicated "a huge potential liability" for the Respondent. The employment expert recorded "the only thing on his mind for his future was securing a large amount of compensation". The judge considered the additional cost to the Respondent. He noted the difficulty facing the Respondent in adducing the evidence of Mr Mosley, now disputed because of evidence given in another hearing by Mr Spalding. The purpose of this evidence on the Respondent's case is to indicate that once Mr Mosley became aware of the problem of the Claimant's CV, he would have been in employment for only two weeks and therefore his loss would have been capped then. The judge reflected upon the schedule of past loss and the future loss and decided there could not be a fair hearing on that ground either.
26. The Employment Judge approached the two sub-rules of Rule 18(7) distinctly and in sequence taking first unreasonable conduct and secondly inactive pursuit. While he did not need to reach that stage when finding in favour of the Claimant under the unreasonable conduct rule, he did expressly say that he was turning to consider fair hearing. There was unreasonable conduct but it was not proportionate to strike-out the claim on account of it. If it were proportionate, it would not be struck-out as a fair trial was yet possible.
27. When deciding against him under the inactive pursuit rule, the judge did have to consider whether a fair hearing was impossible. In the course of examination of that second and/or third ground the Employment Judge raised a matter which gives rise to two grounds of appeal. They are that the judge considered an irrelevant factor and that he was not impartial and should have recused himself from hearing the strike-out application. The platform from which these two grounds are launched are the following paragraphs in the Tribunal judgment:

"4.28 There is the further complication that the only remaining member of the original tribunal able to hear this remedy hearing is the Chairman, Mr D P Thompson, the Chairman of this Tribunal. Both lay members have retired on reaching the age of 70. Mr Baxter retired on 29 May 2003 and Ms Dring on 3 August 2004. The Chairman very clearly recollects that although the decision on the merits was by a majority only, that the Tribunal as a whole held some preliminary views, which were unanimous, as to the claimant's entitlement as far as compensation was concerned. The Chairman wishes to emphasise that these were preliminary views only, expressed at the time, in private, and that there is absolutely no doubt that all members of the Tribunal were keeping an open mind, subject to hearing further evidence, medical evidence and submissions from both parties. Nonetheless, it is true that such opinions were expressed, in private, albeit in an informal way. It is going to be very difficult for the Chairman to expunge that from his memory, and to ensure that, if this remedy hearing proceeds with two other lay members, to ensure that he does not try to influence those lay members.

4.29 As is usual and normal practice, the original merits decision, as sent to the parties, only contained the relevant facts leading to the decision of the merits. The way that the parties behaved during the hearing, their general demeanour, the way they expressed themselves, are not necessarily recorded in detail in the written reasons for the decision. Such matters could influence a tribunal in its decision making processes, not only in respect of the merits hearing but also the remedy. Whilst it is theoretically possible for the remedy hearing to be heard by a separately constituted tribunal, relying upon the limited wording in the promulgated decision, clearly in a case such as this, it is highly desirable for the same tribunal to conduct the remedy hearing."

The Claimant's submissions

28. On behalf of the Claimant it is contended that the Tribunal erred in striking-out the claim. The judge ought not to have treated together issues under Rules 18(7)(d) and (f) for they are "wholly distinct provisions". The only conclusion is that the judge would not have struck-out the claim for inactive pursuit alone. The judge failed to explore all possibilities before concluding in relation to injury to feelings that a fair hearing was impossible. The judge did not exclude the possibility that certain remedies could be excluded if they were the most prejudicial in respect of the delay. He conducted an unfair procedure and erred in failing to ask the Claimant to give evidence and in failing to assess the cogency of the Claimant's witness statements and other documents in respect of injury to feelings. In respect of the personal injury claim it was wrong to strike it out since there was no evidence from the Respondent to suggest that an assessment of the Claimant would be impossible and would be mere speculation. There were contemporaneous medical reports at least from the Claimant's own medical consultants. As to the evidence of Mr Mosley, which goes to a remedy in respect of loss of earnings, the judge had lost sight of the fact that Mr Mosley had produced a draft statement for the 2003 aborted hearing. The judge placed "undue emphasis" on the delay. In referring to the absence of the retired members the judge had considered an irrelevant factor as a further complication since in any event the Tribunal could be reconstituted either with the same Employment Judge or as a completely fresh Tribunal.
29. The Employment Judge's impartiality was called into question and he should have recused himself. He should not have formed the preliminary view which he did and if he did he should have notified the parties of that. The view he took was a negative view indicating that the Claimant's claim for compensation would be small. This constitutes a breach of Article 6 of the European Convention of Human Rights. Finally the Employment Judge erred in considering that the remedy hearing had not been pursued expeditiously and in indicating that there was increased cost to the Respondent by this procedure.

The Respondent's submissions

30. On behalf of the Respondent it is contended that the Employment Judge was correct to consider as part of his approach to inactive pursuit, the question of whether a fair trial was impossible. The judge had taken a structured approach albeit that he had considered fair trial ahead of proportionality.
31. The Employment Judge was right to find there were difficulties in each of the potential remedies and it was noted that the Claimant had never attended for examination in response to the Respondent's request for dates up to September 2005. The difficulty with Mr Mosley's evidence came as a result of his being unwilling to subject himself to further abuse in the presence of the Claimant. Mr Mosley had prepared a draft witness statement in 2003 relating to a conversation with Mr Spalding of London Electronics College in 2000 and the Respondent was unaware of any challenge to this evidence until 21 October 2004 when the Claimant produced a statement from Mr Spalding. That had not been put to Mr Mosley. If the original hearing had taken place in October 2003, or as projected in April 2004, none of the difficulties found by the Employment Judge in 2006 would have prevented a fair trial. The medical evidence available indicated that the Claimant had psychiatric symptoms prior to the first diagnosis of depression in November 1999, as Dr Cahill's medical notes which go back to 1989 show he had been treated for anxiety. Causation was an issue in the light of the ongoing legal proceedings resulting in unfavourable judgments against him by Employment Tribunals or further education establishments on 13 May 1999, 10 June 1999 between September and December 1999, 1 September 1999 and 27 September 1999. By 7 December 1999 allegations of race discrimination against five colleges had been rejected and this was the setting for depression reported at that time.
32. The Employment Judge did not consider an irrelevant factor when he looked at the constitution of a likely Tribunal. Nor should he have recused himself.

The allegation of apparent bias

33. When an allegation of bias, apparent bias, or unlawful refusal to recuse is made, the EAT's function is to determine the matter by findings of fact on all the evidence available to us. The test approved by Lord Hope in Porter v Magill [2002] 2 AC 357 at para 102 is this

"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility … that the tribunal was biased."

34. In such cases it is sometimes appropriate for the EAT to hear live evidence, see Facey v Midas Retail Security Ltd [2001] ICR 287 EAT Lindsay P and members.
35. The issue is whether the Employment Judge should have recused himself because the three members had formed a preliminary view of the remedy which was unfavourable to the value of the Claimant's claim. The circumstances we find are these. The Employment Tribunal sat and heard evidence and submissions for six non-consecutive days. We have no reason to consider that at the outset the hearing was confined to liability. In any event, the Claimant giving evidence will have explained how he felt upon being rejected by the Respondent on the grounds of his race. In every discrimination case in our experience, the expression of feeling, and at least a general reference to financial loss, are features of the evidence in chief of the Claimant, given as soon as it can be. This was followed by a further two days in discussion amongst themselves. A reserved decision was registered on 20 November 2000. It was a majority judgment with the judge and Mrs Dring in the majority in favour of the Claimant and Mr Baxter dissenting.
36. The Tribunal met again for what was to be a three day remedy hearing in October 2003. Mr Baxter had retired at the age of 70 on 29 May 2003 and so was presumably given an extension by the Lord Chancellor to continue to sit on the case. By the decision reached on that date it was acknowledged that:

"on the face of it and looking at the available medical evidence the Respondent is facing a claim for substantial compensation.

…

Frankly the Respondents are facing a considerable claim by Dr Abegaze and the chain of causation is going to be absolutely crucial to the decision we make."

37. The Tribunal was right. At that stage it had one employment and six medical reports. The medical reports made a causal connection between the Claimant's psychiatric and ENT conditions and his rejection for the post on 1 September 1999, a period of four years and ongoing. The Respondent was not in a position to contest the evidence at that stage. By 2004 both of the members had retired at the age of 70. The Employment Judge said it would be difficult for him to "expunge" the opinions expressed by the three of them if he were to chair a differently constituted Tribunal, He did however acknowledge that it was "theoretically possible" for a completely fresh Tribunal to be constituted although it was highly desirable in a case such as this for some continuity. We accept that. Did the expression in private of a unanimous preliminary view about remedy disqualify him for hearing the strike-out application?
38. The first question is: when was the preliminary view formed? At first sight it might appear to have been formed during the course of the liability hearing in 2000. As the Employment Judge says, no reference is made to it during that judgment. However, there is a preliminary view given at the aborted hearing on 13 October 2003 by the three-person tribunal, which we have cited. Whether the preliminary view was formed in 2000 or 2003, the only occasions when the three person Tribunal met, does not seem to matter for it was in place in 2006. It is more likely that it was formed in 2003 when the Employment Tribunal convened to hear the remedy, read the remedy evidence and expressed a view in writing.
39. The premise on which this allegation is made is that the Employment Judge (with the two members) formed a negative view of the worth of the Claimant's case. We do not accept this. It is quite contrary to the express view in the 2003 judgment. The Claimant did not complain that (a) in 2000; the judge, in the majority had formed a view in the Claimant's favour; (b) in 2003 the unanimous Tribunal said that the Claimant's compensation claim was substantial; (c) in April 2004, the same Employment Tribunal would be listed to decide remedy. The only evidence in 2003 was the Claimant's and this was of substantial injury and loss. There was no application for recusal of the judge from any of the case management decisions in 2003-2006. There is no trace of negativity in the 2006 judgment at paragraphs 4.28 and 4.29. No submission has been made to us as to how the claim viewed as substantial by the three-person tribunal turned into a negative view, or why the former should be doubted. In the light of all this material we find that the Employment Judge was not expressing a negative view of the value of the claim and this allegation is dismissed.
40. It follows that it is not necessary for us to consider the matter further. However, since the judge has been attacked yet again by this Claimant we will express a view lest our finding is wrong. Anyone with experience of conducting legal proceedings is likely to form a preliminary or provisional view (the two are the same) of the outcome. Modern case management requires pre-reading of the papers. It is not surprising that during or at the end of eight days of hearing and discussions over several months, a judicial officer finding in favour of a Claimant looks forward to the next stage which is a remedy. Indeed, modern litigation requires the presentation of evidence and a schedule of loss at the outset. Conscientious and pragmatic judges frequently ask at the outset what the claim is worth, has a schedule been served, has the Claimant got a new job and at what rate? A judicial officer is not required to recuse himself because of the formation of a preliminary view about the value of the claim. He does not commit the offence of apparent bias by forming that view on a preliminary basis, or by keeping it to himself. Our finding is the stronger since the focus of attention is 2003, when there was substantial evidence of the Claimant's claim and the Tribunal in its express findings called out in justice for the Respondent to be able to deal with it.
41. Two authorities are instructive. Porter v Magill is the leading authority on apparent bias. It settled and restated the law. In doing so it dismissed allegations against an appointed auditor of local authority finances who had appeared at a press conference to announce a "provisional view" in trenchant terms that 10 officers and members were guilty of gerrymandering, disgraceful conduct and wilful misconduct and would pay £21m. This was a serious misjudgement and had no place in judicial proceedings, but was not a reason for recusal.
42. In El-Farargy v El Farargy & Ors [2007] EWCA Civ 1149 complaints against a judge for intemperate language, memorably about the Sheikh's flying carpet, were upheld. But complaints of apparent bias for having expressed adverse preliminary views of the party's case were dismissed. Ward LJ said this

26. For my part I do not accept that submission. This judge had already had to deal with this matter on many occasions for many days and, in the light of the husband's appalling forensic behaviour, no observer sitting at the back of his court could have been surprised that he had formed a "prima facie" view nor even that it was "a near conviction". A fair-minded observer would know, however, that judges are trained to have an open mind and that judges frequently do change their minds during the course of any hearing. The business of this court would not be done if we were to recuse ourselves for entering the court having formed a preliminary view of the prospects of success of the appeal before us. Singer J. did express himself in strong terms and he would have been wiser to have kept his thoughts to himself. But there are times in any trial and in any pre-trial review where a judge is entitled to express a preliminary view and I do not see that Singer J. has over-stepped the mark in the particular circumstances of this case. The husband has behaved disgracefully yet he, noticeably, has not joined in the application for the judge to recuse himself. The Sheikh, who allies himself with the husband, cannot complain too vociferously if some of the judge's wholly justifiable ire rubs off on him.

27. In my judgment the judge was right not to recuse himself on the basis that he had apparently already closed his mind.

43. That passage contains answers to all Mr Afeeva's submissions. The expression of a preliminary view is customary. A judge can hold a strong preliminary view, is best advised not to express it, but if he does, should not recuse himself.
44. Our next finding is specifically tailored to the constitution of an Employment Tribunal, on which all three of us have sat. It is not unusual for three members of a Tribunal with a majority lay constitution to consider what a claim is worth even before any evidence is heard. The private discussions of the three members, particularly where they are split on liability, should not preclude them from continuing to do their duty to hear the case through to a remedy. If they hold a preliminary view they are under no duty to disclose it to the parties. They certainly do not commit a breach of Article 6 ECHR if they either form a preliminary view or having formed one keep it to themselves. We in the EAT have unique experience in the UK of a triparte majority lay constitution and have no difficulty understanding how this Employment Tribunal worked.
45. There are several other factors in play. Knowing that this point was to be made in the current appeal, the Claimant did not make it in the appeals which I heard on 12 September 2007. The reflection by the Employment Judge was not conclusive on remedy. After all, three years on he still had no evidence from the Respondent. He acknowledged that he need not be part of any fresh constitution. We agree it would be better for continuity if he did form part of a reconstituted Tribunal. What could the Claimant reasonably fear? The judge had been in the majority in the Claimant's favour. He had expressed a preliminary view that on its face the claim was substantial. He had made many case management rulings in this case and had on occasions declined to accede to the Respondent's applications. He had many occasions between 2003 and 2006 to bring this case to a head and did not.
46. In El-Farargy and Ansar v Lloyds TSB Bank [2006] EWCA Civ 1462, when considering allegations of apparent bias against High Court judges, the Court of Appeal reflected upon what it knows of the court room style and reputation of the judge. Mr Afeeva accepts that is a relevant factor for us on appeal. I have appeared before Employment Judge Thompson, attended judicial training with him, and read many of his judgments and case management orders, and the three of us have heard appeals from him. From the work he has done in this field, we have no doubts about his impartiality. It is demonstrated through the patience which he has shown in the seven years he was handling this case, in the face of abuse and other unreasonable conduct, and, until the last, his determination to see the Claimant through to a remedy.
47. Equally, it is fair to consider the track record of the complainant and the features identified in these proceedings (see para 7 above). The Claimant frequently abuses the judiciary and makes unfounded allegations of bias. As I noted in the three appeals I heard, I and the Registrar had made orders against him for his conduct in the EAT as long ago as 1 May 2003 (PA/0862/02/MAA). One need look no further than the transcript of Burton P's Judgment in 2004, liberally interrupted by the Claimant's vile personal abuse of the President, despite my 2003 order.
48. The allegation of lack of impartiality is rejected. The Employment Judge should not have recused himself. He has acted entirely properly and in the finest tradition of the judiciary.

The new allegation of irregular procedure

49. Related to this is the Claimant's allegation of unfair procedure made against the Employment Judge in that he was not offered the opportunity to give evidence at the strike-out. Having canvassed with counsel the best way to deal with this, it was agreed that as we are today constituted to decide facts, we should hear live evidence from the Claimant and from the only other person present then and now, Mr McGrath. The simple issue to decide is whether the Claimant was offered the opportunity to give evidence in order to respond to the application to strike-out his claim, or knowing that he would be cross-examined he declined an offer by the Employment Judge
50. The Claimant began his evidence on oath unpromisingly with the words "I don't have the faintest recollection". It did not get better. Yet he firmly denied in cross-examination that, in the middle of the morning on 3 November 2006, the judge invited him to give evidence. He said that Mr McGrath was lying when he said that the reason the Claimant had not given evidence was because he was told in open court by Mr McGrath that he would be cross-examined. The Claimant acknowledged that he had made a written submission between the adjourned dates of the hearings and he could have written whatever he wanted.
51. Mr McGrath on the other hand had a clear recollection of both of those statements. He said that the judge had made an offer to the Claimant to give evidence. He had addressed his special duties as counsel against a litigant in person. An invitation was given again at the end of the hearing on 9 November to make any points the Claimant wished to make. It was pointed out to the Claimant in open court that he would be cross-examined if he gave evidence.
52. The Claimant has an unfounded perception about bias in judges and unfairness of his treatment by the judiciary. He is an imperfect reporter of proceedings in which he is involved. In the light of a conflict between the Claimant who could not recollect and counsel who not only gave a clear recollection but pointed to the logic of his evidence, we prefer the latter. The Claimant was given every opportunity to give evidence in opposition to the strike-out. Further, as is demonstrated by his written submissions between the hearing dates, he took that opportunity by choosing to write it down. We find that he did not give evidence for fear that he would be cross-examined quite properly by Mr McGrath and his case would thereby be damaged by his answers.

The application to admit new evidence

53. An application was made at the hearing to adduce a witness statement of the Claimant dated "November/99". The application was opposed by Mr McGrath. The purpose of the application was to show that the Claimant had produced a contemporaneous account relevant to his claim for injury to feelings and it would thus be possible to have a fair trial at least on the injury to feelings remedy in the light of this material. The document arose in the following circumstances. On 17 December 2007, in conference with Mr Afeeva the day before our hearing, the Claimant referred to its existence. He brought it to court where it was shown to both counsel. It had not been seen by anyone before today.
54. The order of the President for this hearing included a direction on fresh evidence. It required long in advance of the hearing service of the material and a submission contending that the evidence could not have been obtained with reasonable diligence for the PHR, it is relevant and would probably have had an important influence on the result of the case, and it is apparently credible. None of that was done. Mr Afeeva said that on its face it was available for the Employment Tribunal but it should be admitted because it is credible and would have had an effect on the case. On behalf of the Respondent it is contended that the evidence is not credible and so would not have an important effect on the case and, since it was produced recently it could not fairly be said that it could not be produced at an earlier stage. The Claimant did not give evidence about this document, so we heard only submissions.
55. We find this document wholly incredible. The Claimant was directed to produce witness statements by order of the Tribunal on 19 December 1999 and ahead of the aborted remedy hearing on 13 October 2003 and the strike-out hearing on 2006. He produced no statements in 2000. He produced seven medical and employment reports for the 2003 hearing, and a 2004 report of Dr Ndegwa but not his own statement. The document was not made known at the Employment Tribunal, EAT and Court of Appeal hearings in the three sets of cases cited in para 8 above. It is not dated but was apparently made before any directions, it is not signed, it ends yours faithfully but does not begin Dear Sir, the text and date are in different typefaces. It did not form part of the crossfire between the parties about the admission of other new evidence for today's hearing. It is not credible that it was in existence before today and therefore it is not credible evidence of injury to the Claimant's feelings in September 1999. It could make no difference to the Judgment under appeal. Technically, the document could not have been obtained before now but that is circular. The evidence which the document purports to carry could have been reduced to writing and handed in 2000.
56. The second issue is a document from npower dated 7 May 2003 introducing what might be described as "the Fielding evidence". The Respondent contends this is a fake, being simply a photocopy of an electricity bill. It purports to be from an HR assistant. The address of the HR department is not given at the head of the paper but instead Dr Abegaze's. He says he had it in 2003. It could have been produced then or in 2006. We do not find this document credible either.
57. The application to adduce the two documents as new evidence is refused. The Respondent is entitled to rely on them in the context of our findings about the Claimant's credibility.

The legal principles

58. The legal principles to be applied by an Employment Tribunal when considering an application to strike-out a claim were set out by Sedley LJ in Blockbuster Entertainment Ltd v James [2006] IRLR 630 CA at paras 5, 18-21 with whom Wilson and Brooke LJJ agreed:

"5 This power, as the employment tribunal reminded itself, is a draconic power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. The principles are more fully spelt out in the decisions of this court in Arrow Nominees v Black/edge [2000] 2 BCLC 167 and of the EAT in De Keyser v Wilson [2001] IRLR 324, Bolch v Chipman [2004] IRLR 140 and Weir Valves v Armitage [2004] ICR 371, but they do not require elaboration here since they are not disputed. It will, however, be necessary to return to the question of proportionality before parting with this appeal.

18 The first object of any system of justice is to get triable cases tried. There can be no doubt that among the allegations made by Mr James are things which, if true, merit concern and adjudication. There can be no doubt, either, that Mr James has been difficult, querulous and uncooperative in many respects. Some of this may be attributable to the heavy artillery that has been deployed against him - though I hope that for the future he will be able to show the moderation and respect for others which he displayed in his oral submissions to this court. But the courts and tribunals of this country are open to the difficult as well as to the compliant, so long as they do not conduct their case unreasonably. It will be for the new tribunal to decide whether that has happened here.

19 In deciding this, the tribunal needs to have in mind that the application before it is one that was made, in effect, on the opening day of the six days that had been set aside for trying the substantive case. The reasons why this happened are on record and can be recanvassed; but it takes something very unusual indeed to justify the striking out, on procedural grounds, of a claim which has arrived at the point of trial. The time to deal with persistent or deliberate failures to comply with rules or orders designed to secure a fair and orderly hearing is when they have reached the point of no return. It may be disproportionate to strike out a claim on an application, albeit an otherwise well-founded one, made on the eve or the morning of the hearing.

20 It is common ground that, in addition to fulfilling the requirements outlined in paragraph 5 above, striking out must be a proportionate measure. The employment tribunal in the present case held no more than that, in the light of their findings and conclusions, striking out was 'the only proportionate and fair course to take'. This aspect of their determination plays no part in Mr James's grounds of appeal and accordingly plays no part in this court's decision. But if it arises again at the remitted hearing, the tribunal will need to take a less laconic and more structured approach to it than is apparent in the determination before us.

21 It is not only by reason of the Convention right to a fair hearing vouchsafed by Article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Re Jokai Tea Holdings [1992] 1 WLR 1196, especially at 1202E-H. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact - if it is a fact - that the tribunal is ready to try the claims; or - as the case may be - that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the other conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences."

59. Those principles follow the determination of the Court of Appeal in Arrow Nominees Inc v Blackledge [2001] BCLC 591 by Chadwick LJ who said this:

"54 I adopt, as a general principle, the observations of Mr Justice MilIett in Logicrose Ltd v Southend United Football Club Ltd (The Times, 5 March 1988) that the object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process of the Court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules - even if such disobedience amounts to contempt for or defiance of the court - if that object is ultimately secured, by (for example) the late production of a document which has been withheld. But where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled - indeed, I would hold bound - to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of processing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke."

60. The principles apply equally to an Employment Tribunal: Bolch v Chipman [2004] IRLR 140 EAT.

Discussion and conclusions

61. The Employment Judge was aware of the above authorities and sought to apply them. He was alert to the fact that the Claimant had a judgment in his favour and it would be most unusual to strike-out his claim for a remedy. He knew the Claimant behaved unreasonably. He acknowledged that the strike-out is a draconic remedy not to be used unless other methods for achieving the end sought had been exhausted. He considered each of their three sub rules as grounds for striking-out separately. He addressed himself to the overriding objective in regulation 3. He appears to have accepted the burden was on the Respondent which was as follows:

"Mr McGrath… says he must convince me not only of the basis of the complaint that is to say the claim has been scandalous, unreasonable or vexatious or that it has not been actively pursued, but also that the strike out must be proportionate and that it is no longer possible to have a fair hearing in these proceedings."

62. In our hearing Mr McGrath takes issue with the sequence of those steps but in any event it is necessary to consider all of them. In Blockbuster v James the court was considering strike-out on the grounds of unreasonable conduct and held that the sequence was to make a finding of unreasonable conduct then to consider whether that conduct had made a fair trial impossible and then "even so" consider whether striking-out is a proportionate response. A structured approach is required.
63. The Employment Judge found against the Claimant on the first sub-rule (c) when he condemned his behaviour as unreasonable but held it was not proportionate to strike-out the claim on that ground. He therefore did not need to go on to consider whether a fair trial was impossible but as a matter of fact he did do so and found that that conduct would not make a fair trial impossible. We can see no difficulty with that approach. It is not appealed.
64. The Employment Judge then approached the question of inactive pursuit of the proceedings, sub-rule (d). Mr McGrath in his written submission contends that the Tribunal may not have made a finding on this but the judge said:

"4.34 Accordingly, the judgment of the Tribunal is that the claimant's continued ability to proceed with his claim to the remedy hearing should be struck out on the basis that he has not actively pursued his claim and that it is no longer possible to have a fair Hearing in these proceedings."

He did so having considered proportionality expressly on seven occasions in this part of the judgment. He correctly analysed the nature of the claim as being compensatory only. He was also imaginative in his pursuit of less drastic options by considering the various heads of compensation which could be awarded and to which evidence would be addressed. We have already rejected the Claimant's purported witness statement indicating how he felt about the rejection of his application in September 1999. There is considerable force in the Respondent's argument that it would be difficult to disentangle the affront to the Claimant from the race discrimination which has been upheld from the five or so claims against other institutions which were rejected at the relevant time. The medical evidence is unsatisfactory, indicating the Claimant presenting with depression in November 1999, following psychiatric symptoms going back to 1989. There is no medical evidence from the Respondent. The Respondent is plainly in difficulty in seeking to call Mr Mosley in the light of his feelings about the way in which he was treated at the hands of the Claimant, and to recall evidence seven years on.

65. There was ample evidence to indicate that the Claimant had not been pursuing these proceedings. From 13 October 2003 to 29 October 2005 when the CRE conceded that he was now capable of co-operating with the other parties, he had not actively pursued the case. We have ruled on this concession. He was not incapable, he was unco-operative. At the same time he had actively pursued a range of other proceedings against this and other Respondents and a range of other steps connected to the instant proceedings but had not followed the direction to present himself for an examination by the Respondent's consultant. The stay correctly imposed by the Employment Judge in December 2003, and affirmed in April 2004 was to remain in place until the Claimant attended for examination and he never has.
66. The judge has approached the issue of a fair hearing as the last stage. In considering whether a fair hearing is impossible it is necessary to consider and rule out what other possibilities there are for the trial of the issue. Once a Tribunal has considered those possibilities, less drastic means of achieving either its criticism of the Claimant or coercing him into more reasonable conduct, or compliance with orders as may be, it can then consider whether a fair trial is impossible. It seems to us with respect that if the impossibility of a fair trial is considered before proportionality, a Tribunal could send a case to an unfair hearing. Once there has been a finding that a fair trial is impossible, having considered all other possibilities, not only is the Tribunal entitled to accede to the application to exercise its discretion to strike-out, but it must do so. As a public authority under the Human Rights Act 1998 section 6(3), it cannot order a hearing to go ahead which it has found to be unfair. The Secretary of Tribunals who fixes the hearing is equally a public authority. The parties and their representatives should not be required to attend an unfair hearing.
67. Length of time is relevant to active pursuit and fair trial in two ways. Retrospectively, it is possible to have a fair hearing many years after the relevant event: see Southwark London Borough Council v Afolabi [2003] ICR 800, the Court of Appeal upholding my view that nine years was not fatal. It entirely depends on the nature of the evidence. In that case a nine year delay did not stultify a fair hearing because all the evidence had been written down. In the present case, the evidence had not been collected and stored, it awaited production at a putative hearing eight years on.
68. Prospectively, it is important to understand that the right to a fair hearing includes under Article 6 ECHR the qualification that it should be "within a reasonable time". The Respondent has rights under the Convention too. At the time of the judgment in 2006, there was no indication as to when the Claimant would present himself for examination. The Employment Judge had obviously considered lesser methods such as a stay and conducting a hearing with evidence relating to only certain heads of damage. All of those were unfair to the Respondent. There was no date on which it could be said the Claimant would have been examined and the case be ready.
69. Taking an astringent approach, without assigning them to categories such as less drastic measures, proportionate response, other possibilities, draconian ends (the term used daily by advocates in preference to draconic), it is clear that the following factors were considered:

a. The Claimant was not at fault for, but was the cause of, the delay from 2000 to 2003.

b. This was the third application by the Respondent.

c. The Claimant's unreasonable conduct did not stand in the way of a fair hearing.

d. The delays from 1999-2003, and 2003-April/May 2007 did not in themselves stand in the way of a fair hearing.

e. Adjournment of the 2003 remedy hearing to April 2004: the Claimant appealed this to the Court of Appeal in 2005, yet did not take the one step required to have the case fairly heard: be examined.

f. A stay until the Claimant undertook to be examined. This was in place December 2003-April 2004. There was no appeal. He did not co-operate.

g. A stay until the Claimant was examined. This was in place April 2004-December 2006. There was no appeal. He did not co-operate.

h. A hearing before two new lay members was possible, Mrs Dring and Mr Baxter having long retired. It was theoretically possible for a new Employment Judge to sit with new members.

i. A hearing on limited remedies. It was acknowledged the hearing could be limited to compensation, excluding recommendations.

j. A hearing on certain aspects of compensation.

i. Injury to feelings was unfair on the evidence before the judge and our rejection of the new "evidence".

ii. Psychiatric and ENT evidence from the Claimant was complicated by other causes such as other Employment Tribunal claims, and the Claimant's GP's notes.

iii. Psychiatric and ENT evidence from the Respondent was precluded.

iv. Financial loss was unfair to assess in the light of Mr Mosley's position

70. Even allowing for all those factors, Employment Judge Thompson was in a unique position to project whether a fair hearing was impossible in this case. He had direct hands-on case management of it over seven years. He had direct experience of the Claimant's attitude to the proceedings, including constant applications for postponements. The Claimant had been given many opportunities to attend for medical examination or to show cause why he should not. In our judgment the Employment Judge's decision on this matter should not be interfered with.
71. Since it is a matter for us to decide whether there was a fair hearing before the Employment Tribunal, it might also be said that it is for us to decide whether a fair hearing was impossible. We have had new evidence. Since we found it incredible, the inference we draw is that the Claimant recognises how important it is for him to have produced contemporaneous evidence as to his injury to feelings and his illness in 1999. This claim was uniquely struck-out after a judgment in the Claimant's favour. It had not reached the same stage as that in Blockbuster v James since ample warning was given to the Claimant as to what the consequences were of his failure to attend for medical examination. It was quite simply unfair to expose the Respondent to a claim of this magnitude with the Claimant not co-operating and with no ascertainable hearing date. If as a matter of law after a hearing of this nature the decision is to be made by us on the material we have heard, a year after the Employment Judge, we would make the same decision.
72. We would like to thank both counsel for their submissions. The appeal is dismissed.