United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Written submissions on behalf of the Appellant
For the Respondents	No appearance or representation by or on behalf of the Respondents


 


SUMMARY

PRACTICE AND PROCEDURE: Postponement or stay

There was no basis for interfering with case management directions of an Employment Judge refusing a stay, nor grounds for allowing interim appeals when the claims stood struck out without appeal.


 


HIS HONOUR JUDGE McMULLEN QC

1. These appeals and applications involve challenges to interim orders made by an Employment Judge. I have pre-read the very considerable volume of papers extending to over 500 pages submitted by Mrs Truter, who acts on behalf of her daughter, Dr Truter, the Claimant in the proceedings, against the University of Leicester and two individual Respondents, Professor Burgess and Dr Hall.

An Overview

2. This has been the most densely subscribed set of proceedings arising out of what is essentially a simple matter. The Claimant asserts she is disabled and has some medical evidence. She brings proceedings but wishes to have them stayed. Case management orders have been made by the Employment Tribunal to get the case moving. Over the last six months there has been a huge number of applications by the Claimant to the EAT to challenge the essential decision by the Employment Tribunal that the case should proceed.
3. The Claimant did not follow the orders, nor the amended orders with new timetables, given by the Employment Tribunal. The Tribunal struck out the claims from which there has been no appeal. My own view of interim appeals when there has been a strike-out was contained in a judgment I gave in Edem v (1) Ajilan (UK) Ltd (2) Fujitsu Services Ltd UKEATPA/1600/06/DM, which was upheld by the Court of Appeal. The gist is that there is no point in dealing with interim appeals when a claim has been struck out and there is no live appeal. That is my view of this case, but I will explain it in more detail.
4. Also as part of this overview it is necessary to note that the Registrar and Underhill P have dedicated a good deal of judicial time to the Claimant's applications and appeals. That has not satisfied the Claimant for she has in an extraordinarily strong tone applied for the President to have no more to do with this case and for all the orders he and the Registrar have made to be set aside. The President has considered that, but the matter was listed before me and he has decided that those matters should be dealt with by myself since I am dealing with a number of other parts of this case. I have dealt with this with reasons sent by letter of the Registrar which must be read with this Judgment.
5. The President has made it clear that the dissatisfaction that the Claimant has with his orders should be the subject of applications for review, which it has to be said are granted sparingly by this court, or applications for permission to appeal to the Court of Appeal. Apparently there has been no such application. Thus, the lawfulness of the orders made by the President cannot now be challenged except by applications for permission to the Court of Appeal, if there are no grounds for a review.
6. The Employment Tribunal had all relevant factors and no irrelevant factors in mind. I will follow Wall LJ approving my own Judgment in CIBC v Beck [2009] EWCA Civ 619:

"23. As to the correction of an error of law committed by a judge who is exercising a judicial discretion, the law is equally clear. The leading case is G v. G [1985] 1 WLR 647, which contains references to the well-known judgment of Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345. For an appeal to succeed, the exercise of discretion which is challenged must, in Asquith LJ's words: "exceed the generous ambit within which reasonable disagreement is possible".

25. … a judge who makes a case management decision exercises a very broad judicial discretion and such decisions will be treated with deference by superior courts, the exercise of a judicial discretion which falls foul of G v G is an error of law and is capable of being corrected on appeal.

26. In Noorani v Merseyside TEC Ltd [1999] IRLR 184 at paragraphs 34 and 35, Henry LJ, who gave the leading judgment, said:-

35. Such proactive judicial case management in the law courts becomes more and more important now that it is generally recognised that, unless the judge takes on such a role, proceedings become overlong and over costly, and efforts must be made to prevent trials being disproportionate to the issue at stake, and thus doing justice neither to the parties, to the case at point or to other litigants."

7. I consider this case is an example of what Lord Roskill described in Ashmore v Corporation of Lloyds. [1992] 2 All ER 486:

"… in any trial court it is the trial judge who has control of the proceedings. It is part of his duty to identify the crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty. Litigants are not entitled to the uncontrolled use of a trial judge's time. Other litigants await their turn. Litigants are only entitled to so much of the trial judge's time as is necessary for the proper determination of the relevant issues."

Lord Templeman said:

"The parties and particularly their legal advisers in any litigation are under a duty to co-operate with the court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his own conclusions about the merits when he hears the case. It is the duty of counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge will be capable of fashioning a winner. In nearly all cases the correct procedure works perfectly well. But there has been a tendency in some cases for legal advisers, pressed by their clients, to make every point conceivable and inconceivable without judgment or discrimination. In Banque Financière de la Cité SA v Westgate Insurance Co Ltd [1990] 2 All ER 947 at 959, [1991] 2 AC 249 at 280–281 I warned against proceedings in which all or some of the litigants indulge in over-elaboration causing difficulties to judges at all levels in the achievement of a just result. I also said that the appellate court should be reluctant to entertain complaints about a judge who controls the conduct of proceedings and limits the time and scope of evidence and argument. So too, where a judge, for reasons which are not plainly wrong, makes an interlocutory decision or makes a decision in the course of a trial the decision should be respected by the parties and if not respected should be upheld by an appellate court unless the judge was plainly wrong. … the control of the proceedings rests with the judge and not with the plaintiffs, An expectation that the trial would proceed to a conclusion upon the evidence to be adduced is not a legitimate expectation. The only legitimate expectation of any plaintiff is to receive justice. Justice can only be achieved by assisting the judge and accepting his rulings …."

8. I note subsequently that this approach was summarised by Longmore LJ, upholding Underhill P's Judgment in Chief Commissioner v Caston [2009] EWCA Civ 1298

"I agree and would only reiterate the importance that should be attached to the EJ's discretion. Appeals to the EAT should be rare; appeals to this court from a refusal to set aside the decision of the EJ should be rarer. Allowing such appeals should be rarer still."

Today's proceedings

9. Formally before me today are two appeals and three applications under Rule 3(10). The first is against an order of the Employment Tribunal on 14 April 2009, PA/0770. That was subject to an appeal by the Claimant, which was 20 days out of time and was rejected. The Claimant is entitled to appeal. No reasons have been given against the valid exercise of discretion, it being unchallenged that there was no valid appeal instituted under Rule 3 within 42 days. I set out my approach to out-of-time appeals and to the exercise of discretion in Muschett v London Borough of Hounslow [2009] ICR 424 and Westmoreland v Renault UKEATPA/1571/08. The Registrar found no reason to extend time. Such extensions are given in exceptional circumstances.
10. The Claimant's representative asserts that the Claimant has three post-graduate degrees in law and was engaged as a lecturer in employment law. I have taken account of that and of the serious medical issues the Claimant puts forward, but these do not excuse the failure to lodge an appeal in time. The Claimant is highly knowledgeable in employment law and experienced in its practice, for she had already brought and withdrawn previous proceedings against the University. As I explained in Muschett, I hear matters afresh, but there is no more evidence than was before the Registrar. In the circumstances, I see no reason to exercise discretion to breathe life into the appeal. In certain cases I am entitled to take into account the merits, see the judgment of Sir Christopher Staughton in Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111. This appeal has no merit for it is simply a challenge to a decision by an employment judge to proceed with a CMD in order to move the case along. It has, in any event, been exhausted by the hearing which did take place on 18 May 2009. So, the appeal against the refusal to register this appeal is dismissed.
11. I then turn to appeals against judgments made on 11, 15 and 22 May 2009, respectively PA/0813, PA/0814 and PA/740. These are all case management decisions. They were the subject of a letter of 14 June 2009 which was deemed to be a Notice of Appeal and was dealt with in a judgment by the President. He took an analytic approach to these appeals and said the following:

"I have read carefully Mrs Truter's sincere and well-written (though I must say over-long) letter of 14 June 2009, and her more recent correspondence with this Tribunal. Although it contains many criticisms of both the Respondents and the Tribunal, the only matters which require my decision are:

(a) whether reasonable grounds of appeal are shown in relation to the decisions identified at para. 40 and

(b) whether to accede to any of the application in paras. 42 and 43."

12. The President was dealing with a lengthy Notice of Appeal and went through the points one by one. I set out my own approach to Rule 3 applications in Haritaki v South East England Development Agency EATPA/0006/08, at paragraphs 1-13, which should be read with this judgment. In my opinion, which I exercise independently of the President, none of these points has a reasonable prospect of success for the reasons he gave and upon which I cannot improve.
13. Appeals against the orders of 11 and 15 May suffer from the same defect as the one I noted in the out-of-time appeal. It is that these were preparatory matters leading to the hearing, which in fact took place on 18 May 2009 and, again, have been exhausted. There is no unfairness in either of those two orders.
14. I then turn to the orders made at the hearing on 18 May 2009 by Employment Judge Caborn. The Claimant did not appear, nor was she represented. The Respondents were represented by counsel. Orders dated 22 May 2009 were made for the onward transmission of this case and directions were given. I see no error of law in those case-management decisions.
15. It must be borne in mind that the purpose of CMDs such as this in a complicated case of constructive dismissal and disability discrimination is to organise in advance of a hearing the issues which are to be tried. The Court of Appeal has indicated time and again that proper case preparation is required in such difficult cases: see Hendricks v Commissioner [2003] IRLR 96. All the judge was doing was to try and put into proper order the issues to be tried at a full hearing. These are primarily for the benefit of the Claimant so that her case is tried expeditiously; but of course where there are a corporate Respondent for whom evidence will be given by a number of individuals, and also two individual Respondents, it is important that they know what has to be done in order that they can meet the charges against them.
16. The Claimant has been dissatisfied with the President's opinion under Rule 3(7). She did not submit a fresh Notice of Appeal under Rule 3(8), but she has submitted a good deal of material criticising the President's judgment. None of this takes the matter any further. It is important just to stand back for a moment and look at what the employment judge was doing at the hearing: as I have indicated he was doing his job to put the case in proper order. There is no error in his case-management decisions.
17. The Claimant continued to be dissatisfied and on 16 September 2009 the President looked at this and said as follows:

"Although the appeals and applications before this Tribunal have become regrettably, and unnecessarily, complex, the underlying position is quite straightforward. The Employment Tribunal has declined to consider staying the Appellant's claims without better medical evidence than she has felt willing to provide. The Appellant has appealed against the relevant orders but also invites this Tribunal itself to impose a stay, both on the appeals and on the Employment Tribunal proceedings. But this Tribunal can only direct what should happen in the Employment Tribunal if the Appellant shows that the Employment Tribunal's own decisions were wrong; so it cannot be in her interest to hold up the determination of the appeals. I would add that in any event it would be wrong for this Tribunal to impose a stay unilaterally - that is, without giving the Respondents a chance to be heard. So these appeals, if they are to be pursued, must proceed to a hearing (i.e. in the case of most of them, a hearing under rule 3(10) - see below).

I wish to add this about the Appellant's presentation of her case for a stay. She has now supplied the letter from Dr. Hadley dated 20 August 2009, but this contains little detail. In particular, there is no information about the Appellant's condition in recent months, no prognosis, and no explanation of why it is said that the hearing of an appeal - if one is allowed to proceed - would be deleterious to the Appellant's mental health. I note that the four-month period relied on by Mrs Truter was first referred to many months ago and has long since expired. I am not entirely clear whether Mrs Truter's correspondence is drafted by herself or by the Appellant. If the former, Mrs Truter seems amply capable of representing her daughter on the appeal. If the latter, that would suggest that the Appellant can appear herself. But if those impressions are misleading, pro bono (free) representation is very likely to be available: the Deputy Registrar can supply contact details for the Free Representation Unit and the Bar Pro Bono Unit.

I am not unsympathetic to the Appellant's difficulties, but they are not, for the reasons given, such as to justify this Tribunal simply imposing a moratorium: if the Appellant wishes to challenge the Employment Tribunal's decisions about the progress of the litigation she must proceed with her appeals now.

Against that background, I can deal with the individual points raised by Mrs Truter.

(1) Appeal no. PA/0770/09/RN. This appeal is out of time, as I pointed out in the observations incorporated in the Deputy Registrar's letter of 21 July 2009. Para. 5 of Mrs Truter's letter of 4 August questions why I did not grant an extension at that point; but I judged, and still judge, that it was right to require an express reasoned application - not least so that the Respondents could make such submissions as they see fit in response. Such an application has not been made at para. 10(1) of the letter of 4 August. On my reading of the Registrar's order and reasons of 13 August (sealed on 17 August), she did not intend to determine that application, which I had asked to be referred to myself if made; and the application has been referred to me under rule 21(2). I direct that it be considered at a hearing; but in the circumstances as they now are I think it unnecessary that I deal with it personally, and it may be heard by any Judge of this Tribunal. (If by any chance that construction of the Registrar's order is wrong, and she is to be taken to have refused an extension, Mrs Truter's letter of 21 August clearly constitutes an appeal against that order, and I would if necessary order that that appeal be considered at the same hearing.)

(2) PA/0740, 0813, 0814/09/RN. As regards these appeals, the Appellant was notified by the Deputy Registrar's letter of 21 July that in my opinion no reasonable ground for bringing them was disclosed. At para. 9 of her letter of 4 August Mrs Truter expresses dissatisfaction with that decision but expressly disavows any wish for a hearing under rule 3(10) and instead asks - see para. 10(2) - for an extension of time so that she may submit a fresh Notice of Appeal under rule 3(8). That application was refused by the Registrar's order of 13 August (sealed 17 August). But her letter of 21 August Mrs Truter appeals against that decision. I direct that that appeal too be the subject of a hearing, on the same occasion as the application (or appeal) referred to at (1) referred to above. However, I add this. With respect to Mrs Truter, I do not believe that her objection to a rule 3(10) hearing is well-founded, and the objection in any event loses most or all of its point if there has to be a hearing of her other appeal/applications. Accordingly, the hearing of the appeal against the Registrar's order in this respect will also double, so far as appropriate, as a hearing under rule 3(10) in respect of the decision communicated by the letter of 21 July.

(3) At para. 10(3) of Mrs Truter's letter of 4 August she asks that all of the above appeals be replaced by a single appeal contained in a fresh Notice of Appeal. That application also was refused by the Registrar in her order of 13 August. By Mrs Truter's letter of 21 August, the Appellant appeals against that refusal. I direct that that appeal be considered at the hearing directed above. I am bound, however, to observe that time spent on the purely formal question of whether these should be treated as one appeal or four seems to me to be time wasted. There can be no dispute that they are appeals against four separate decisions, however much those decisions may be inter-linked; and there are good reasons for this Tribunal's practice of requiring the designation of a separate appeal in respect of each order appealed against. That practice should give rise to no real difficulty for the Appellant, since the individual appeals are dealt with together and, for example, she is not required to write separate letters in respect of each.

(4) At para. 10(4) of her letter of 4 August Mrs Truter asks, in effect, for a stay of proceedings in this Tribunal. That application was refused by the Registrar's order of 13 August. Mrs Truter's letter of 21 August appeals against that decision. It is implicit in the reasons that I have given above for not ordering a stay at this stage that this Tribunal is unlikely to be sympathetic to that appeal, and the Appellant may not wish to pursue it given that the hearing will be proceeding in any event: nevertheless, I will direct that if the appeal is pursued it may be considered at the hearing directed above.

(5) At para. 10(5) of Mrs Truter's letter of 4 August, Mrs Truter asks that this Tribunal direct a stay of proceedings in the Employment Tribunal. As I have already pointed out, this Tribunal has no power to make any such order in the absence of a valid substantive appeal. If the Appellant disputes this analysis, she can do so at the hearing which I have directed.

(6) The proposed appeal against the Employment Tribunal decision of 11 August 2009. Mrs Truter appeals against the Registrar's insistence, communicated in her letter of 18 August, that any appeal be the subject of a discrete notice of appeal. I can see nothing even arguably wrong in the stance adopted by the Registrar, and I dismiss that appeal. Separately, at para. 2 of her letter Mrs Truter suggests that time for appealing runs not from the date of the Tribunal's order, namely 8 September. That is wrong. The date of 22 September specified in the Registrar's letter accordingly stands, but I will grant an extension of seven days to 29 September.

The upshot of the foregoing is that I direct that a hearing be fixed before a Judge alone to consider all of the matters identified at (1)-(5) above. The Respondents will be entitled to attend the hearing. It is, however, a matter for them whether they wish to do so; and, if they prefer not to attend, the Judge will have regard to any submissions or evidence supplied in accordance with the timetable specified below.

I direct that the Appellant lodge with this Tribunal, and serve on the Respondent's solicitors, within 28 days of the date of this letter a bundle containing (a) the ET1 and ET3; (b) the orders appealed against, together with any other correspondence between herself and the Tribunal and/or the Respondents which may be necessary in order to put those orders in context; (c) the full correspondence between the Appellant and this Tribunal; (d) any witness statements on which the Appellant may wish to rely for the purpose of the hearing; and (e) any medical reports or records intended to be relied on. Each party shall, within 14 days thereafter, lodge with this Tribunal, and serve on the other party, a skeleton argument setting out its submissions. The Respondent's skeleton argument should exhibit any further materials to which they may wish to refer beyond those included in the Appellant's bundle. The hearing will be listed for the first available date from 14 days thereafter, subject to any dates to avoid (which should be notified to this Tribunal within seven days). The hearing will have an estimate of half a day."

18. That indicates a very thorough approach, if I may say so with respect, to dealing with the Claimant's dissatisfaction. The Claimant had previously been represented professionally, but not at this stage. The Registrar at the end of the citation from the President's reasoning drew the attention of the Claimant to sources of free representation so that it might help her to deal with these matters.
19. Again dissatisfied, the Claimant continued to complain and so on 10 November 2009 a letter was written on behalf of the President and he said as follows:

"The decision appealed against is that contained in the Registrar's letter of 22 October, which was in substance a refusal to accede to any of the applications at paragraph 21 of the Appellant's letter of 13 October. I will take each of those applications in turn.

(a) The registrar dealt with the substantive application on the papers. I am prepared to deal with the appeal on the same basis, save as indicated below.

(b) The Registrar had no power to discharge my earlier directions. I or another Judge could do so by means of a review under rule 33(1), and that was indeed sought by way of alternative in the Appellant's letter. The power review cannot however be invoked simply because a party thinks the earlier order was wrong: otherwise there could be no finality. The correct course in such a case is to appeal to the Court of Appeal. I acknowledge that a review of a case-management direction is appropriate where there has been some genuine change of circumstances. Notwithstanding that the application for a review was out of time, I have read the observations on the directions contained in the Registrar's letter of 16 September set out at paragraphs 9-19 of the Appellant's letter of 13 October, and I can see nothing of that character asserted. I do not therefore believe that any extension of time could be justified.

(c)-(e) The substance of these applications was considered by me in the letter of 16 September. They cannot be revisited, for the reason given above.

(f) The Registrar had no power, and nor have I, to make such an order. It could only be made consequent on a successful appeal against the original unless order or if the Tribunal had refused, on an application for review, to grant relief against the "automatic" strike-out and there had been a successful appeal against that refusal. (In theory an appeal might lie against the strike-out itself, though that is a moot point; but it could have no prospect of success if the unless order itself was properly made.)

(g) If the Appellant wishes to have the striking-out of her claims rescinded the only routes to that result are as I indicate above.

(h)/(i) I did not deal with these items in the letter of 16 September because it was not a matter requiring judicial decision; and no appeal to me lies in relation to it. So far as I can see, no "directions" are sought. I have nevertheless gone back to the paragraphs indicated in the Appellant's letter of 4 August. I have confirmed with the Registrar that all substantive correspondence to and from either party or the Tribunal is routinely copied to the other, and that this should be indicated on the letters in question. I can also confirm that it is the policy of this Tribunal to make reasonable accommodation to the needs of disabled litigants. But what that requires in each case must be considered with the particular circumstances of that case. As to the request in letter of 21 August that a record is made of all telephone conversations with the parties or the Tribunal, I am sure that this occurs as a matter of ordinary office practice; but it would impose a wholly disproportionate administrative burden for that record to be routinely disclosed to both parties. In the unlikely event that something only recorded in such a conversation might impact on the interests of a party, that party would be course be informed.

(j) This application seems more relevant to proceedings in the Employment Tribunal than in this Tribunal. In this Tribunal there is almost never any witness evidence, so that there is not normally any need for an authoritative record of what was said; and hearings rarely last more than a day, so that a tape-recording would be of no value in the course of the hearing itself. In the unlikely event that an issue subsequently arises, e.g. on appeal, as to what was said in the course of the hearing, an official transcript of the hearing can be obtained from the Tribunal's own system. The Tribunal's judgment is of course transcribed, at least if the parties so require. For those reasons the making of unofficial recordings and transcripts is generally not permitted. But Mrs Truter can of course make any application that she wishes to the Judge or Tribunal conducting a particular hearing. I can say nothing about the position in the Employment Tribunal.

(k) I can see no justification for making the order sought, still less for doing so without hearing from the Respondents. If there were a real reason to suppose that the Respondents might destroy relevant documents notwithstanding the fact that there are pending appeals, there might be a case for making an order requiring them not to do so; but I can see no such reason. I have no reason to doubt that, as a responsible public body, they would appreciate the need to retain relevant documents until the final conclusion of proceedings. I am, however, prepared not to dismiss the application definitely at this stage but to adjourn it to the hearing listed for 24 November.

Finally, I note Mrs Truter's observation that some of the decisions in the Registrar's letter of 16 September constituted "orders" within the meaning of rule 31 and so should have been sealed. I do not believe that case management directions (or decisions on appeals from such directions) of the kind contained in that letter, which do not determine any substantive rights, constitute "orders" for the purpose of that rule; and it is not the practice of this Tribunal for them to be sealed."

20. That, as can be seen, leaves open the possibility of an appeal against the Registrar. On 16 November 2009, in correspondence which I have already described as extraordinary in tone, coming as it does from a lawyer; major criticisms were made of the President. Now nine new orders were sought in addition to the setting aside of all orders the President and the Registrar had made.
21. As can be seen, the President left open for decision an appeal against the Registrar's ruling on two matters. They are these:

"The only matters not covered by the order of Underhill P. are (j) and (h). As far as the application to "record future hearings" are concerned, that application must be made to any judge, whether in the ET or the EAT, on the day of the hearing.

As for the application at (h) it is open to the appellant to make applications to the respondent under the Data Protection Act and Freedom of Information Act. Any other application for discovery should be made on notice in the ET."

22. Again, on an appeal from the Registrar, it is open to me to make my own decision afresh. There is no application before me for recording of the hearing today; there is no one here. In practice this has been a hearing on the papers. In respect of the Data Protection Act, those are matters which the Registrar has made clear are to be dealt with by the Claimant. As it happens, I agree with the decision of the Registrar. Thus, I dismiss the appeal against her order of 22 October 2009 and there is nothing further in any of these cases.
23. As to the Claimant's application for a review of the President's orders, which he referred to me to deal with as part of this hearing, there are no grounds under Rule 33 for me to exercise the power. It is to be used sparingly. I take it that the ground is the interests of justice. It is not in the interests of justice that these orders be reviewed. Whether they were correctly made is not a matter for me, but for the President of the Court of Appeal in applications for permission to appeal.
24. I appreciate that this will be a disappointment to the Claimant and to her mother who has written articulately on her behalf. The complaints made by the Claimant in her two claim forms, the subject of the orders and amended orders, cover territory dating back to 2002. She resigned in May 2007. I can understand and sympathise with the employment judge's determination fairly to bring these issues to trial. After all, there are four parties engaged in this litigation and the interests of them all have to be considered and balanced.
25. The employment judge, again as I stand back, has dealt sympathetically with the issues placed before him. The judge who in fact struck out the claims did so advisedly on the Claimant's failure to obey the orders. That was consistent with the judgment of the Court of Appeal, which upheld my own judgment in Chukwudebelu v Chubb Security Personnel Ltd [2008] EWCA Civ 327. Unless orders were made under Rule 13(2), the Claimant failed to comply and there is no live appeal against them.
26. So, again, invoking Edem, although I have dealt analytically with the various strands of the Claimant's complaints, there is, additionally, no point in any of these now that the claims have been struck out.