United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S JOHNSON (The Appellant in Person)
For the Respondents	MR J JUPP (of Counsel) Instructed by: Messrs Davies Arnold Cooper Solicitors 6-8 Bouverie Street London EC4Y 8DD


 


SUMMARY

Practice and Procedure – Case management – Postponement or stay

Respondent in unfair dismissal case alleged that claimant was evidently "delusional" - Sought and granted a stay pending to enable a request to be made to the Official Solicitor to report on his mental capacity - Official Solicitor subsequently declined to intervene on the basis that he had no role in Employment Tribunal proceedings - Appeal allowed - Observations on the powers of the Tribunal in cases of suspected mental incapacity


 


THE HONOURABLE MR JUSTICE UNDERHILL

1. Until his dismissal on 7 March 2007 the Appellant was employed by the Respondents as what they termed a food and beverage steward (and he, more prosaically, a kitchen porter) at the Radisson Sussex hotel in London. He believes that his dismissal was procured by the Watch Tower Society of Great Britain - that is, by the Jehovah's Witnesses. On 14 May 2007 he presented a claim for unfair dismissal.
2. There was a pre-hearing review on 27 July 2007 before an Employment Tribunal Chairman, Ms. C. Hyde. The Appellant appeared in person. The Respondents were represented by Mr. Jeffrey Jupp of counsel. It was the Respondents' submission that the Appellant's belief about the involvement of the Jehovah's Witnesses in his dismissal was delusional; that he was plainly suffering from a mental illness of some kind; and that there were serious doubts about his capacity to bring and prosecute legal proceedings. They relied essentially on the contents of the ET1 itself and a witness statement served by the Appellant. These are discursive, but the broad nature of their contents is sufficiently summarised at para. 12 of the Chairman's Reasons as follows:

"The Claimant made repeated references in his claim form to secret video recordings carried out on behalf of the Watch Tower Society; he talked about the Watch Tower Society instigating his dismissal; coming into the Hotel to turn staff against him; spreading rumours about his sexuality; preventing witnesses from assisting him; installing secret cameras in changing rooms and in his room; falsely imprisoning him in a Psychiatric Hospital; and showing the tapes to the then Prime Minister, Tony Blair."

Against that background the Respondents sought an order that the claim should be struck out pursuant to rule 18(7)(b) of the Employment Tribunal Rules; but in the alternative they submitted that the Tribunal should invite the Official Solicitor to investigate whether the Appellant had sufficient capacity to litigate the proceedings and should adjourn the claim in the meantime. Mr. Jupp acknowledged that there were no express rules providing for such a course in the Employment Tribunal; but he referred the Chairman to the available procedures in the High Court, in particular under Part 21 of the Civil Procedure Rules, and to a procedure which has been available since at least the late 19^th century under which the Court could invoke the assistance of the Official Solicitor in the manner proposed (see Harbin v Masterman [1895] 1 Ch. 351). (A third proposed alternative was that the Tribunal should order the payment of a deposit pursuant to rule 18(2)(c); but I need not pursue that aspect.)

3. The Chairman was not prepared to strike the claim out; but she did accede to the Respondents' alternative application. It appears that she gave her decision orally at the conclusion of the hearing; but a formal record of her Judgment, accompanied by written Reasons was not sent to the parties until 26 September 2007. Her formal Judgment was in the following terms:

"The Official Solicitor will be invited to investigate whether the Claimant had sufficient capacity to litigate these proceedings; and the claim was stayed pending that investigation."

The Chairman gave her reasons for that decision at para. 27 of the Reasons as follows:

"The Tribunal is under duty to act in a way which is consistent with the overriding objective in the Employment Tribunals' Rules of Procedure. The Tribunal took on board the points made on behalf of the Respondent about the difficulties of conducting litigation against a party in respect of whom mental capacity was an issue. In addition the discussion at the Pre-Hearing Review with the Claimant about what matters were relevant and his ostensible abandoning of the points relating to the Watch Tower Society and then shortly thereafter continuing to refer to them illustrated difficulty in due course of defining the parameters of the hearing. Finally however it was important to safeguard the interests of the Claimant himself. The Tribunal was unable to say whether the unfair dismissal claim was likely to succeed or not. It appeared to the Tribunal that there were points that could be made in the Claimant's favour. His discrimination claims were not clear. In the circumstances it was important that they should not be struck out because of the way in which the Claimant put his case if this was related to his mental capacity. The Tribunal considered that by reason of the nature of the allegations brought by the Claimant, it was put on notice as to whether the Claimant had the mental capacity to conduct this litigation. It was in those circumstances inappropriate to decide the Respondent's application to strike out any part of the Claimant's claim. In those circumstances the Tribunal considers that it is an appropriate case in which to invite the Official Solicitor to give confidential advice to the Tribunal by way of preparing a Harbin v. Masterman enquiry into the mental capacity of the Claimant. The proceedings will be stayed until that enquiry is conducted."

4. On 22 October 2007 the Appellant appealed against that decision. His grounds of appeal read as follows:

"(1) Chairperson ruled after "PHR" that Respondent pays compensation for allegations they are guilty of. She concluded that we await her order to that effect. Claim was not stayed. Judgment is in total variance to what transpired during the hearing. Therefore a forgery.

(2) I am litigating in person in about seven different proceedings in the High Court "RCJ" London since July 2005. No Judge or Lord Justice raised any issue concerning my mental capacity to litigate. "Doctored" judgment is therefore an insult to the intelligence of the High Court.

(3) Respondent could not provide any evidence to question my mental capacity to self -litigate.

(4) A consultant psychiatrist, Dr. Bogdan Banjac of the Oxleas NHS Trust, wrote on the 9/3/07 that there is no reason for me to go undergo any psychiatric assessment at his clinic. Judgment of the Tribunal is therefore an abuse of the Tribunal process."

5. On the sift Judge Clark directed that the appeal should proceed to a full hearing. It appears, however, from his contemporary observations that he did so not so much on the basis of the Appellant's pleaded grounds as because he was concerned whether it was appropriate in cases such as the present for a tribunal to make use of such powers as it might have analogous to those under CPR 21.
6. Since the appeal was lodged the Official Solicitor has responded to the Tribunal's invitation. By letter dated 26 October 2007 the Deputy Official Solicitor, Ms. May Maughan, wrote as follows:

"I …regret to say that the Official Solicitor is not able to accept the invitation to investigate the mental capacity of the claimant to pursue his application. Although the Official Solicitor's functions are various, as provided for by statute and by direction of the Lord Chancellor, they do not extend to tribunals, where the Official Solicitor has no role. He is not therefore able to accept your request."

Mr. Jupp has not sought to challenge the Official Solicitor's view that he has no power to carry out the investigation requested by the Chairman; and, so far as I have been able to investigate the point, it seems to me to be correct.

7. There is, however, a further complication. The Appellant has – as his grounds of appeal acknowledge – been involved over the last couple of years in a number of proceedings in the High Court (all or most brought by him under the name of Gordon Lotsu). I do not have full information about these proceedings, although it seems that they have all been made the subject of stays, or cognate orders, on a variety of grounds. One such claim (HQ07X01611) has been brought against the Watch Tower Bible and Tract Society of Britain. In those proceedings, at the invitation of the Defendant, Master Foster on 3 October 2007 made an order in substantially the same terms as those made by the Chairman in these proceedings. By letter dated 30 October 2007 the Respondents' solicitors notified the Chairman of Master Foster's order. By letter dated 12 November 2007 the Regional Secretary notified the parties of the Chairman's decision that "it is in the interests of justice to await the outcome of the referral by the High Court to the Official Solicitor". They were informed that the proceedings would remain stayed until 8 December 2007, when the position would be reviewed. It appears from the terms of that order that it was intended to replace the order now under appeal, the Chairman (or Employment Judge, as she had by then become) recognising that it could not be sustained on the basis that it was originally made. On 14 February 2008 the Judge made a further order continuing the stay pending the outcome of the present appeal. I have been told since the hearing that the Official Solicitor has encountered difficulties in preparing a report, and that may be the reason for the further change in the terms of the stay; but that is not a matter on which I need make any decision.
8. In any event, whatever the position about the further orders from the Tribunal, the present appeal is formally concerned only with the order of 27 July. Mr. Jupp, inevitably, accepts that the refusal by the Official Solicitor to make a report for the benefit of the Tribunal means that that order cannot be sustained on the basis that it was made. He submits, however, that it can be supported on a different basis and invites me to continue it. His submission, as refined in oral argument, can be summarised as follows:

(1) The Employment Tribunal must have the power to dismiss proceedings maintained by a person who does not have the requisite mental capacity. He accepts that neither the Employment Tribunals Act 1996 nor the Employment Tribunals Rules of Procedure contain any express provision to this effect, but he submits that it must follow from first principles: the commencement and maintenance of legal proceedings is a legal act which – like any other such act – can only be done by a person who understands what he is doing.

(2) The question whether a person has such capacity is now to be determined in accordance with the provisions of the Mental Capacity Act 2005. This came into force on 1 October 2007, i.e. about two months after the order under appeal; but such differences as there may be between the statutory test of capacity and that previously applicable at common law are immaterial for present purposes.

(3) In the present case there was ample material before the Chairman to raise a question as to the Appellant's mental capacity; but not, Mr. Jupp accepted, sufficient by itself to prove absence of capacity.

(4) In such circumstances, he submitted, it was legitimate for the Chairman to impose a stay while investigations were carried out for the purpose of obtaining an authoritative assessment of the Appellant's capacity.

(5) Although it was initially envisaged that that assessment would be provided by the report of the Official Solicitor as requested by the Chairman, that was not necessarily the only possible source. Now that it appears that the Official Solicitor will not be prepared to provide a report at the invitation of the Employment Tribunal, the necessary authoritative assessment can still, he submitted, be obtained by this Tribunal issuing a similar invitation. He submitted that the position of the Employment Appeal Tribunal is fundamentally different from that of an Employment Tribunal because of the provisions of sec. 29 (2) of the 1996 Act, which is in the following terms:

The Appeal Tribunal has in relation to –

(a) …

(b) …

(c) all other matters incidental to its jurisdiction

the same powers, rights, privileges and authority (in England and Wales) as the High Court …".

Mr. Jupp also referred me to the observations of Lindsay J in Chief Constable of West Yorkshire v A [2000] IRLR 465, at para. 29, to the effect that sec. 29 (2) of the 1996 Act meant that the Employment Appeal Tribunal has "as the ordinary incidental right of the High Court … an inherent jurisdiction to protect due access to and the due administration of justice …". It followed, he submitted, that the Official Solicitor was obliged to carry out the same role in support of proceedings in the Appeal Tribunal as he did in support of proceedings in the High Court; and, accordingly, that he would, if asked, carry out the necessary investigations and make a report in response to such an invitation. His report, once obtained, could then be used by the Employment Tribunal as an authoritative basis for deciding how to proceed.

In short, therefore, Mr. Jupp invited me to use the powers of this Tribunal to fill the gap left by the absence of any relevant power at the level of the Employment Tribunal.

9. I think that Mr. Jupp's first two submissions are very likely correct, though in a case where there has only been legal representation on one side I prefer not to make a definitive decision unless I have to do so. I am less confident about his third submission. I accept that there were ample grounds for the Chairman to suspect that the Appellant was suffering from delusions, but I am doubtful whether that fact by itself is a strong indication of lack of mental capacity to conduct litigation. The courts and tribunals have experience of many litigants with strange beliefs or obsessions which may reflect mental ill-health of one kind or another, but only in extreme cases does the question generally arise of treating them as mentally incapable: mental illness does not necessarily involve mental incapacity. However, I note that the Chairman relied also on her experience of dealing with the Appellant at the hearing, and I am prepared to assume, without deciding, that Mr. Jupp's submission is good.
10. Having reached that point, the question arises of what steps are open to a Tribunal which has grounds to believe that a litigant before it does not have capacity to conduct the case. Again, I am reluctant to propound any definitive guidance without having had the benefit of full adversarial argument. But in most cases I think the answer will be clear from consideration of two cardinal points.
11. First, the rules contain no mechanism equivalent to that available in the ordinary courts under CPR 21 for the Tribunal to appoint a litigation friend to conduct the proceedings on behalf of the party in question. Mr. Jupp submitted to me that such a power existed under rule 10 of the Employment Tribunals Rules of Procedure (which form Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004), particularly when read in the light of the over-riding objective. Rule 10 is headed "general power to manage proceedings". Rule 10(1) reads as follows:

"Subject to the following rules, the chairman may at any time either on the application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate. Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit."

I cannot accept that submission. The appointment of a litigation friend seems to me a very different matter from the kinds of power which would have been envisaged by the Secretary of State in making a rule giving Chairmen (now Employment Judges) a "general power to manage proceedings"; and the same indeed goes for Parliament in creating the rule-making power itself (see sec. 7 of the Employment Tribunals Act 1996). A litigation friend of his or her nature has wide authority to dispose of a party's legal rights, either directly by bringing and/or compromising proceedings, or indirectly by the way in which he or she conducts those proceedings. I do not believe that a power to confer such rights could be created otherwise than expressly, and indeed by primary legislation. (As to this, I accept that – so far as my and Mr. Jupp's researches were able to establish - although authority for the provisions of CPR 21 now derives from para. 1 of Sch. 1 to the Civil Procedure Act 1997 there may originally have been no statutory authority for the power to appoint a next friend in the High Court, or the superior Courts from which it was created. However, such authority appears to have been regarded as inherent in the historical jurisdiction of the Court of Chancery. The position of the Employment Tribunals is of course in no way analogous to that.) It follows that a finding of mental incapacity would create a very unsatisfactory situation, in which the Tribunal would be concluding that a claimant could not advance his claim but no means existed for it to be advanced by someone else on his behalf. Sometimes the possibility might exist of obtaining the intervention of the Court of Protection, but there is no mechanism available to assure such intervention. There could thus be a serious injustice. Of course in many cases the circumstances which led the Tribunal to conclude that the claimant had no capacity might also suggest that the claim was misconceived; but that would by no means always be so.

12. Secondly, there is in the context of High Court proceedings a presumption that a party has capacity: see Masterman-Lister v. Brutton & Co. (nos. 1 and 2) [2003] 1 WLR 1511. I am sure that a similar presumption should apply in the Employment Tribunal. In circumstances where (a) there is no route via the Official Solicitor whereby reliable evidence to rebut the presumption can routinely be obtained (see para. 6 above) and (b) there is no sure mechanism for protecting the party's interests if mental incapacity were, by whatever route, proved (see para. 11), the advantages of seeking to rebut the presumption seem very questionable.
13. Those two considerations, taken together, suggest that Tribunals should be very wary of embarking down the road of trying to investigate a party's mental capacity. There are likely to be many potholes and it may turn out to be a dead-end. I do not think that in the cases of the great majority of parties who show indications of mental ill-health such circumspection on the part of the Tribunal will create a real difficulty. If, as will often be the case, such claimants' cases appear evidently misconceived they will be liable to be struck out on that ground, without any need for an investigation of capacity. In some cases a claimant with what appears to be a viable case on the merits may, because of what appears to be a mental illness, make life very difficult for the other party and the Tribunal. Employment Judges can be trusted, in the exercise of their case-management powers (including the power to strike out), to hold a proper balance between the interests of the parties in such cases; in cases where the conduct of one party is such as to cause serious unfairness to the other party or to make the case truly unmanageable the claim may have to be struck out even though it is appreciated that the conduct in question is the product of mental illness.
14. I accept that there may be cases in which one party has (e.g. from medical reports obtained for other purposes) and presents to the Tribunal good evidence justifying a finding of incapacity and applies for the claim to be dismissed on that basis. In such a case it may well be (though, for the reason given, I prefer not to decide) that, in the absence of a procedure for appointing a litigation friend, the claim will indeed have to be dismissed (or, if there is a prospect of the Court of Protection becoming involved, stayed), even in circumstances where there is no other ground for doing so. But such a state of affairs would not be a happy one, not least because the party facing the application would, ex hypothesi, not have had the capacity to take decisions in relation to it. I would expect such cases to be exceptional.
15. It follows from those observations that even if I were satisfied that the Appeal Tribunal had power to request a report from the Official Solicitor as suggested in Mr. Jupp's fifth submission I would not be prepared to exercise that power. But I should say that I am far from sure that it would be right for me to make such a request in any event. Mr. Jupp is probably correct, though I have heard no submissions from the Official Solicitor, that the effect of sec. 29 of the 1996 Act is that the Employment Appeal Tribunal should be treated by the Official Solicitor for his purposes as equivalent to the High Court. That would mean that if, for the purposes of proceedings pending in the Appeal Tribunal, the intervention of the Official Solicitor were required, it could be sought. But I am very doubtful whether it would be right for this Tribunal to use those powers in order to obtain assistance by the back door for the Employment Tribunal which the Employment Tribunal would not be entitled to obtain in its own right.
16. It seems – see para. 7 above – that the stay imposed on 27 July may in fact already have lapsed. But, for the avoidance of doubt, I will formally allow the appeal. I need not in these circumstances seek to deal with those aspects of the pleaded grounds of appeal (see para. 4 above) which are not covered by the foregoing reasoning. (I was not able to establish what, if anything, lay behind the Appellant's evidently erroneous belief that the Chairman had, instead of making the order shown in the formal Judgment, made an order for compensation in his favour (see ground 1).) It would seem, though this must ultimately be a matter for the Regional Employment Judge, that the sensible course now is for a case management discussion to be convened.
17. I should add, by way of postscript, that following the hearing I asked the Registrar to write to both parties asking for further information about the present status of the stay. I have referred briefly to the information received at para. 7 above; but apart from that I have not needed to have regard to the contents of the correspondence which I received from either party.