SUMMARY
PRACTICE AND PROCEDURE – Bias,
misconduct and procedural irregularity
In 1998 the Employment Judge heard and
dismissed a claim brought by a former client of his. He did not know the
connection at the hearing but did before the Judgment. The EAT upheld the
Claimant’s appeal on the ground of appearance of bias. The Judge should not
have heard the case or continued with it after actual knowledge.
In 2011 the same Judge heard and
dismissed most of the Claimant’s new case, where he represented three others.
He did not remember the connection. The Claimant did, but said nothing as he
did not know he could apply to the Judge. When he saw how counsel for the
Respondent did this in a subsequent hearing before a different Judge, in
between the hearing and the reserved Judgment, he did not know he could at that
stage seek recusal.
EAT held an informed observer would
see a real possibility of bias. Although the connection was old, the Claimant
was not merely a former client, but a litigant who had successfully challenged the
Judge on bias.
He did not waive his right to complain.
His evidence was accepted. Entire Judgment set aside and case sent for fresh
hearing.
HIS HONOUR JUDGE McMULLEN
QC
Introduction
1.
This case is about the appearance of bias by an Employment Judge. The
Judgment represents the view of all three of us called to this case for our
diverse specialist experience and in the unusual proceedings to make findings
of fact at first instance on the allegations of apparent bias, and to give an
opinion on what a litigant should do about challenging a judge. We will refer
to the parties as the Claimants and the Respondent.
2.
It is an appeal by the Claimants in those proceedings against a Judgment
of an Employment Tribunal chaired by Employment Judge Robinson at Liverpool sitting over six days, sent with Reasons on 23 November 2011. There
were five Claimants. Today Mr Healey represents himself and Mr Stone,
the others having dropped out of the proceedings. Mr Greaves, one of the
Claimants, was represented by counsel, but Mr Healey represented the
others, and the Respondents were represented by Mr Northall of counsel.
Today, the Respondent is represented by Ms Rebecca Eeley of counsel.
3.
The Claimants made a number of money claims against the Respondent, and,
broadly speaking, they lost more than they won, many of their claims having
been dismissed. As to the part that they succeeded on, the Respondent appealed
and is awaiting a full hearing on that matter. As to the parts that the
Claimants lost on, they raised what we will call the substantive grounds and in
addition take two points of apparent bias, the procedural points.
4.
Directions sending this case to a preliminary hearing were given by
HHJ Peter Clark, with a direction that deponents in the case, who are the
first Claimant himself on the allegation of apparent bias and Mr Northall
of counsel for the Respondent on the same point, should attend to give
evidence. The intention of the appellate Judge was if possible to deal with
matters relating to procedure and to give a clearer idea of what issues might
benefit from a full hearing. As we said at the opening of this case, having
heard the parties, this case now proceeds as a full hearing with live evidence
on the apparent bias point with the substantive points subject to a preliminary
hearing being stayed until the outcome of the former.
The procedural background
5.
The first Claimant is an experienced litigator, with a number of claims
and appeals to his name, and these are relevant to the central allegation of
apparent bias. In short, Judge Robinson knew the first Claimant, and it
is contended he should not have conducted the hearing in Liverpool, the subject
of today’s appeal.
6.
The procedural history appears to begin with a Judgment of Maurice Kay J
(as he then was) in an EAT case known as Healey v Exel
Logistics UKEAT/0846/97. The appeal of Mr Healey against the
dismissal of his claim arising out of section 100 of the Employment Rights Act
– that is, health and safety issues – was allowed, and there was substituted a
finding that he was automatically unfairly dismissed and the matter sent for a
remedy. The outcome of that remedy hearing was that he was reinstated, but Mr Healey
was dissatisfied with the terms of the reinstatement issue, and he went on to
appeal to HHJ Peter Clark and members, who, together on
5 May 2000, dismissed his appeal (see UKEAT/0084/99).
7.
In the meantime, on 16 December 1999 Mr Healey brought an appeal
raising one point (Healey v John Adams & Sons Ltd
UKEAT/0025/99), which is that the Judge who had sat upon his case was Mr Robinson,
and Judge Robinson had been his solicitor. In the Judgment of
HHJ Wilkie QC, as he then was, there appears this:
“2. Mr Healey appeals that decision
on one ground only. During the hearing Mr Healy did not recognise the
Chairman, Mr Robinson. Following the completion of the rehearing he contacted
a firm of solicitors, Jackson & Canter on 28th October 1998 in connection
with a remedies hearing in a previous successful claim that he had made against
another employer. During a conversation with a Mr Cunliffe of that firm, Mr Healey realised
for the first time that Mr Robinson, the Chairman of the Tribunal, was the same
person who, in his capacity as a partner in that firm of solicitors, had
advised him in connection with the Exel case. Mr Healey informed
Mr Cunliffe of that fact. Mr Cunliffe pointed out to Mr Healey that,
of course, Mr Robinson could not advise Mr Healey in respect of that
other case but that would not prevent Mr Cunliffe from acting. However, that
initial view expressed to Mr Healey by Mr Cunliffe was subsequently
reversed. On the 2nd November Mr Cunliffe telephoned Mr Healey to
say that he had spoken to Mr Robinson, and had been advised that the firm
should not act for Mr Healy in connection with that other case.
3. Therefore the position is that by the 2nd
November 1998 Mr Robinson had been made aware of the fact that in his capacity
as a partner in that firm of solicitors he had had dealings with Mr Healy in
respect of a previous employment matter. It is on this factual basis, which is
uncontested, that Mr Healey says that Mr Robinson's previous
involvement with him compromised either his impartiality or the appearance of
his impartiality in dealing with the current case as Chairman. Mr Healey confirmed
the facts to which we have referred in an Affidavit. That Affidavit was
presented to Mr Robinson for his comment. Mr Robinson, by a letter dated 23rd
February 1999, accepted that Mr Healey did consult his firm in
respect of that earlier case. He confirms that Mr Healey had seen a
Mr Saunders at that firm. He states that he cannot himself recall seeing Mr Healey but
that he may have done. He did not recognise Mr Healey during the
Tribunal hearing but he says as follows;
‘if I had remembered at the Tribunal that I had seen him or
if I had known that my firm had acted for him, I would not have allowed myself
to be Chairman of the Tribunal.’
4. It seems to us that that was a perfectly
correct position for Mr Robinson to take. On any view, that level of contact
in respect of an analogous legal matter between one of the parties to the
litigation and the person chairing the Tribunal, did give the appearance of
want of impartiality regardless of whether, in fact there was any such want of
impartiality. Mr Robinson and Mr Healey came to realise this
prior connection at a stage when the decision was still under consideration and
had not yet been promulgated. That means that the apparent want of
impartiality arose at a time when the Tribunal had not concluded its active
part in the litigation. Accordingly at a time when the litigation was still
proceeding and therefore at a time when it was necessary in the interests of
Justice for the appearance of impartiality still to be maintained. It
therefore seems to us, however unfortunate it may be, that the attitude which
Mr Robinson indicated he would have had at an earlier stage is the attitude
which ought to have continued right through until promulgation. Therefore,
even at that late stage, Mr Robinson should have indicated the position
publicly and should have withdrawn as the Chairman of the Tribunal. It follows
that this appeal must succeed and the matter must be remitted to an entirely
different constituted Tribunal for Mr Healey 's application for
unfair dismissal to be heard afresh by a Tribunal where there is no appearance
of want of impartiality.”
8.
The relationship between Judge Robinson and Mr Healey was fully
described in that case, including the perception of Mr Healey in respect
of the Judge’s attitude to him.
9.
A number of other cases have arisen, including Mr Healey’s own, the
subject of these proceedings. On 19 May 2011 the case opened, and
immediately Mr Healey noticed from the screen outside the Tribunal the
name of Employment Judge Robinson, and he inquired as to whether it
was the Keith Robinson that he had previously come across and the clerk
told him that was so. Mr Healey did nothing about his previous
involvement with Judge Robinson and went on through the case.
10.
He gave evidence to us, upon which he was properly cross‑examined,
on which we find that he did not think he could do anything about the fact that
the Judge was sitting here. He remembered the Adams case that
came before HHJ Wilkie’s tribunal; he did not know that he could apply to
the Employment Judge to recuse himself. He had not read the Adams
Judgment recently. He remembered the gist, which was that the EAT found the
Judge should have recused himself because of the previous involvement of the
Judge with Mr Healey. He did not know that in the circumstances the Judge
would have to recuse himself. He felt that it would put those whom he represented
in a worse position. His view was that the EAT had said that Judge Robinson
should have recused himself in the earlier proceedings. The Judge gave no
indication that he recognised the Claimants. When he was asked whether he
should have raised it, he recalls that he has now read Ms Eeley’s skeleton
argument, and another matter happened.
11.
It was that in due course, when Mr Healey became employed by
Wincanton, after the present proceedings, he was dismissed, and he brought
proceedings himself for unfair dismissal, where the matter came before
Judge Ryan. By that time, Mr Stone and Mr Gregory, two of the original
Claimants in this case represented by Mr Healey, had been dismissed
unfairly by the Respondent. The Respondent appealed to the EAT. The Judgment
of Langstaff P and members on 11 October 2012 (UKEAT/0011/12)
was to dismiss the Respondent’s appeal, and there again Mr Healey
represented Mr Stone, but Mr Gregory was not represented. Again,
Mr Northall of counsel appeared for the Respondent. Mr Healey’s own case
of unfair dismissal was aborted because of the successful application by counsel
instructed by the Respondent for the Tribunal to recuse itself because the same
Judge in the first‑instance case of Stone and Gregory had expressed
strong views against Wincanton.
12.
That application was successful. And so between the end of the oral
hearing in the present case, which was 7 September 2011, and its
Reasons on 23 November 2011 Mr Healey saw learned counsel make an
application for recusal of an Employment Judge because of language used by the
Judge against a party, and it succeeded. He pointed out in his evidence to us
that counsel in that case put in a lot of case law and a lot of research, and a
very strong case was made about the very strong language of the Judge. In his
submission to us, Mr Healey drew a distinction between that and the
finding in his own case, where it was the mere connection between the Judge and
Mr Healey that had caused the EAT to set aside his earlier Judgment. In
the Gregory and Stone case it was the firm language of the Judge in the course
of the proceedings which had caused the Judge himself to stand down upon
application being made. He told us he had to have strong grounds otherwise it
would simply antagonise the Tribunal against himself and the people whom he
represented. It was put to him that he had nothing to lose, but he had
confidence that he had put enough material in and the Judgment would come out
properly in favour of himself and his colleagues. He felt that there was not
enough for him to make an application to ask the Judge to step down.
13.
The second part of his evidence relates to what occurred during the
hearing, and these are the more detailed matters that Mr Healey set out in
his affidavit about the conduct of the Employment Judge’s solicitors firm. It
is contended that the Judge acted with prejudice in a number of individual
respects. These include the existence of different documents called the
“Labour Agreement”, although in cross‑examination he accepted that only
the 1999 agreement was in evidence and this was the basis of the case as it was
run before the Tribunal.
14.
He also contended the Judge behaved unfairly in respect of his wish to
cross-examine the Respondent’s witness, Mr Bird, and on whether men had
been sent to Argos to work or just for training (they are drivers). Mr Healey
contended that this was relevant to the claim he was making for a determination
of his terms and conditions. The Judge, according to Mr Healey in his
evidence, told him that he could not ask Mr Bird anything about the
matter, but he protested, and the Judge allowed only one question. On that
basis, Mr Healey contends before us that the Judge accepted that the
matter was relevant and the Employment Judge unfairly conducted the hearing so
as to exclude any more than one question to Mr Bird upon that.
Mr Northall did not dispute Mr Healey’s account of that. Mr Healey
had firm views about whether his claim arose under section 1 or
section 4 of the Employment Rights Act 1996, but in submissions to
us he accepted that some of this case was about the legal error of the
Employment Tribunal, if it were to arise in the case.
15.
Finally of substance is the issue of sick pay. Mr Healey gave
evidence and contended that sick pay was a live issue before the Employment
Tribunal. In paragraph 8 of its Reasons the Tribunal recorded this:
“Firstly, we were clearly told that the matter had been settled
at the first hearing and secondly as Mr Healey has been paid […] we heard
no evidence from either party and we cannot now adjudicate […].”
16.
It is said by Mr Healey that that represents unfairness to him. He
has pointed out that the Judge himself made a ruling midway through the
proceedings while there was a break in the hearings, on 21 June 2011,
in response to Mr Healey’s application to have this matter dealt with in
open tribunal. Mr Healey’s application was that his own sick‑pay
matter (not Mr Gregory’s, which was decided in Mr Gregory’s favour)
showed that there was a disagreement about whether the claim was settled or not
and, “There is some debate ongoing”, as he put it, and that therefore he wanted
to bring some evidence about it, to which a reply was given on behalf of the
Judge saying this:
“Employment Judge Robinson has said for you to leave out
all evidence in relation to company sick pay.”
17.
That, contends Mr Healey, is unfair. Mr Northall agrees that
the issue was raised, but says he was surprised because he thought the matter
may have been settled. That did represent, we find, the position of the
parties at the opening of the case on 19 May, but by the time of the mid‑hearing
application in June Mr Healey was plainly saying the matter had not been
settled and he wished to call material about it.
The First Claimant’s case
18.
Mr Healey’s case is that this Judgment should be set aside. He is
well aware that the consequence of a successful challenge on bias or apparent
bias is likely to be that the part of the case he won would also be dismissed
as well; but he fights on. The contention he makes is that the Judge should
not have sat upon the case and that the instances of individual unfairness
during the hearing are illustrations of the attitude of the Judge. He is not
in a position to challenge the response of the Employment Judge to his
evidence, which is this:
“I have dealt with him both as a client and as a claimant before
a Tribunal of which I was a member.
However, until receiving the affidavit I had no inkling
whatsoever that I had come across Mr Healey previously. […]
I left private practice ten years ago and cannot remember many
clients for whom I acted and certainly not Mr Healey until I received his
affidavit.”
19.
He did not accept any criticism of his handling of the claim and noted
that a major part of the Claimants’ case had been successful, a point indeed
adopted by Ms Eeley in her submissions. Nevertheless, Mr Healey
contends that in light of the ruling of the EAT under Judge Wilkie, Employment
Judge Robinson should not have heard the case even if he discovered the matter
later. He contends that he cannot be criticised for not raising the matter
when the case opened or until after he learned how to make a recusal
application while his own Tribunal was still in deliberation.
The Respondent’s case
20.
The Respondent’s case is that Mr Healey has waived his right. In
any event, it is tenuous, since timing of relationships is important in
discussing whether there is apparent bias. The time of the relationship was
relatively proximate in 1998, whereas it is 13 years since that relationship or
since the last appearance of Mr Healey before Judge Robinson
occurred, and in those circumstances the appearance of bias would disappear. Mr Healey
has waived his right by not doing what he should have done. He was the sole
one with the knowledge of the relative position of himself and the Judge, and
he should have raised it then. As to the individual complaints, these are all
matters of case management well within the bands vouchsafed to a Judge to get
the case running. Many of the issues may be black‑letter appeals about
declarations, determinations and so on, but they do not exhibit an appearance
of bias.
The legal principles
21.
The legal principles to be applied emerge from the Judgment of the House
of Lords in Porter v Magill [2002] 1 All ER 465, where Lord
Hope at paragraph 103 said:
“The question is whether the fair‑minded and informed
observer, having considered the facts, would conclude that there was a real
possibility that the Tribunal was biased.”
22.
Burton P is upheld by the Court of Appeal in Ansar v Lloyd’s TSB Bank PLC
[2006] EWCA Civ 1462 as giving a long list of factors relevant to the exercise
of the court in deciding what a fair‑minded and informed observer would
do. Most of the illustrations given in paragraphs 1‑11 presuppose
some knowledge by the Judge, all matters being drawn to the Judge’s attention.
In particular, he said this:
“Whilst recognising that each case must be carefully considered
on its own facts, a real danger of bias might well be thought to arise […] if:
a. there were personal friendship or animosity between the Judge
and any member of the public involved in the case; or
b. the judge were closely acquainted with any member of the
public involved in the case, [particularly if their credibility was involved];
or
c. […] where the credibility of any individual were an issue to
be decided by the judge, the judge had in a previous case rejected the evidence
of that person in […] outspoken terms […].”
Discussion and conclusions
23.
We prefer the argument of Mr Healey, on behalf of himself and
Mr Stone, on what might be described as the constitutional issue. The
first thing to note is that the law in relation to this particular set of
individuals has been determined by the EAT in Judge Wilkie’s case. It was
easy for it to determine, for Judge Robinson had acknowledged at that time that
had he known that Mr Healey had been a client of his firm he would not
have tried his case. The EAT said that was correct. The EAT also went on to
hold that the Judge had wrongly carried on to make decisions in the case once
he knew of that relationship, and that too offended against the principle of
fairness. The outcome of that appeal was that
Employment Judge Robinson should not hear a case brought by Mr Healey.
He went on, however, to hear this case. The Judge did not know by the time it
reached him that this was Mr Healey whom he had previously tried.
Thirteen years later may be a long period. It may be sufficient to extinguish
the appearance of bias as between a solicitor and a client, so that the
solicitor, now Judge, may hear a party. Clearly, two years was not a
sufficient gap.
24.
The circumstances, however, are important, and they are different. This
was not a case simply of the solicitor hearing his client. This was a case
where the Judge had now decided against his former client on his claim, the
former client had taken the matter to the EAT not on a technical legal issue of
construction but on a direct criticism of bias as it was put (probably apparent
bias, really) by Mr Healey against Judge Robinson, and therefore this
is a stand‑out issue. Thirteen years in the ordinary solicitor/client
relationship may cause unfairness to disappear, but in the circumstances of
this case we hold that that passage of time was not sufficient. Indeed, we
hold that Judge Robinson should not at any time hear a case in which Mr Healey
was a party in the light of their history.
25.
The Judge was not aware during the course of this case of that connection.
So the spotlight moves to Mr Healey himself. He is a self‑representing
party. He helps his fellow workmates, having been previously a shop steward in
Unite, and he has now considerable experience of litigation before the ET and
the EAT. We may have missed out the involvement of Mr Healey in his
successful appeal on behalf of Mr Amin, another co‑worker, before
HHJ Serota QC and members (Amin v Wincanton Group Ltd
UKEAT/0508/10), so he does not resist the depiction by Ms Eeley of an
experienced lay person, but lay person he is. We know that it was unfair for
Employment Judge Robinson to try Mr Healey in 1998, and the EAT ruled in 1999
he should not hear the retrial. We consider that the fair‑minded observer
would have knowledge of the 1999 appeal, and given the comments made in that appeal
by HHJ Wilkie such observer would take the view that it would be unfair for
Judge Robinson to try Mr Healey in 2011. Judge Robinson’s
acknowledgment to the Wilkie Appeal Tribunal in 1999 that had he known, he
would not have tried him is, we think, good for all time and not just for 13
years. That satisfies the first stage in the reasoning.
26.
The question is: did Mr Healey waive his right to make the
objection? We have no doubt that if the objection had been raised,
Judge Robinson would have acceded to it: see above. Why would the Judge
want to get involved again with Mr Healey in a six‑day case when Mr Healey
knows the route to the EAT? We consider that Judge Robinson’s approach,
correct in 1999, would have been retained in 2011 and he would have recused
himself. His being involved gives the appearance of unfairness, and so one has
to examine the circumstances surrounding Mr Healey’s not raising it. It
is clear that a party must be informed of all the facts relevant to his
decision and of the consequence of the options available to him (see Adamson v Swansea University UKEAT/0469/09). If he does make a decision in those
circumstances to go on with the case, he will be bound by that decision, even
though there exists a real possibility of bias on the part of the Judge.
27.
In our judgment, he had not reached that stage. We accept his evidence
that he did not know that he himself could make the application for a recusal
before the Judge. He pointed out that it was the EAT who found the unfairness
in his case and who directed that the Judge should not hear the case. We
accept his evidence that he did not know he could apply and that it would have
made it very antagonistic for him and the people he was representing if he had
raised it. He thought it was for the Judge if the Judge himself felt he should
not try the case.
28.
Within that is the criticism that in the light of what had been said in
1999 the Judge should himself have taken the point. Mr Northall, for the
Respondent, knew nothing of the history, and so the Respondent had no role to
play on the day. On that basis, the situation on the day indicated that Mr Healey
did not waive his right.
29.
Did he waive his right when he saw in his own case of unfair dismissal counsel
for the Respondent put forward an application and succeed? This was at a time
when judgment was reserved in the present case, and Ms Eeley contends that he
then had the wherewithal to go back to the Tribunal and ask for a recusal. We
agree – in fact, he did – but we do not consider that he can be faulted in not
doing so. He felt the proceedings were over; they were in the hands of the
Judge and the members. The experience of the lay members in this court is that
that is a very common experience: once the oral hearing is over, ordinary people
do not think they can go and knock on the door of the Tribunal with a further
submission or, in this case, an application that the whole thing be scrapped on
the grounds of apparent bias. We reject the contention that once he had seen
how it was done by counsel he sat on his hands and did nothing. In our judgment
the test in Porter is met in respect of the constitutional
position of Judge Robinson in this case.
30.
We then turn to the individuated complaints. Most of these are
complaints about the way in which case management was conducted by the Judge.
As to this, the recent Judgment of Underhill J in The Partners of Haxby
Practice v Collen UKEAT/0120/12 is very relevant, for it puts
in perspective the acts of a Judge trying carefully to control a case and
husband the time, and the view of an unrepresented party to this. It is in our
experience quite common for someone in the back of a court to see a Judge
intervening with a self‑representing party, because that party needs help
or focus, and not doing the same with counsel, simply because counsel is not
making the same mistakes That looks as though the Judge is intervening unfairly
to prevent the case being put, but properly understood from the perspective of
the informed observer the case is one of case management rather than bias.
Underhill J gave careful observations about this phenomenon where he said:
“33. It is very common that self-represented parties have little
idea how to question the other party’s witnesses. There is nothing wrong
in such a case in employment judges intervening in order to avoid
cross-examination becoming a slanging match or becoming bogged down in
irrelevances and to ensure that the essential points are put: indeed they
should do so. The form of the intervention must be left to the discretion
of the judge as a matter of trial management: different judges have different
styles, and in any event the circumstances calling for intervention will vary
very widely. There is nothing wrong in principle in the judge, in a situation
of this kind, taking over the questioning on a particular point; nor in his or
her taking the view that not every point of difference between the parties
needs to be put – provided always that the witness has had the chance to give
an answer on any point that is likely to be central to the case. There is
of course the risk that a judge will lose objectivity by “descending into the
arena” in this way, though generally a professional judge should be well able
to resist the temptation. There is a much greater risk that, even though
the judge is in fact remaining entirely impartial, it will not seem that way to
the other party. But those risks sometimes have to be taken: while in a
perfect world a judge should be able to sit back and let the parties or their
advocates ask the questions, the employment tribunal is not a perfect world,
and justice will sometimes, particularly where there are self-represented
parties, require a more engaged approach. However, judges in such a case
need to be alive to the risks, and they should do what they can to guard
against them: in particular, they should do their best to defuse any perception
on the part of the other party that the judge is ‘taking sides’.
34. Thus there was nothing wrong in principle in what the Judge
set out to do. It seems that he was not able to do it without giving the
impression that he was taking sides. That is a pity. It is
particularly regrettable that his questioning of the Appellants’ witnesses was
perceived as “aggressive and/or dismissive”. But it is impossible to know
to what extent the Appellants’ view reflects real defects in the Judge’s manner
as opposed to being the result of a distorted perception on their part.
It does not help that the only evidence that I have is the unsatisfactory
affidavit of Mr McEvoy. He does in fact cover this point, but he does so
only in the most general terms, and the Judge’s findings about him make his
capability for objectivity somewhat suspect. There is also a question of
degree involved. No judge is perfect, and even if on occasion the Judge’s
manner here was not what it should have been that would not justify a
conclusion that he was not approaching the case impartially or that the
Appellants had not had a fair hearing. Ultimately the question for me is
whether the evidence establishes that an objective observer would have formed
the view, from the conduct complained of, that the Judge was not
impartial. I do not believe that it does. Still less does it
establish that in either of the respects complained of the Judge’s
interventions actually disadvantaged the Appellants. As regards his
indication that not every point need be put, Ms Alistari did not identify any
particular point central to the Judge’s reasoning on which Mr McEvoy or any of
the Appellants’ other witnesses did not have a chance to give their evidence.”
31.
We gratefully adopt that.
32.
The question of the sick pay is one that Mr Healey can rightly
complain about. At a substantive appeal he would be able to say that the
finding by the Tribunal is wrong because the Tribunal claim was not compromised.
Even if it were right that the Tribunal was told at the first hearing that it
was settled, the application by Mr Healey, in measured terms with details,
it had to be borne in mind the case was at that stage part‑heard and it
was refused by the Judge without Reasons, and that does give an indication of
unfairness in treatment. The fact that the Tribunal found in favour of Mr Gregory’s
sick‑pay scheme makes no difference, we think, because his circumstances
were different.
33.
The second matter relates to the cross‑examination of
Mr Bird. We accept from Mr Healey, and it is not contested by
Mr Northall, that he was restricted to one question. That is unfair too,
since by definition it is a relevant topic and it cannot be right that he can
only have one question to ask. We have all seen the canny witness not answer
the point; how easy that is when the witness knows there is no more to come.
34.
We reject the other contentions of unfairness as being in categories
either of errors of law amenable to challenge on an appeal or case management
of a difficult case with a number of different Claimants and different
representation and well within the scope of the discretion of the Judge on
behalf of the Tribunal. For this also we bear in mind that the lay members
were asked for, and have provided in rather more substance, answers to Mr Healey’s
affidavit, and they do indicate for the most part the view we have taken, which
is that it was nothing more than mere case management.
35.
There is a third individual matter, which is the contention by
Mr Healey that documents had been fabricated by the Respondent. There is
no finding by the Tribunal on this. This may be an oversight, but in the
context of the very strong claim raised by Mr Healey and the feeling that
he had about this, the failure to provide a decision on this does look unfair
and an irregular procedure; on its own, not sufficient to set aside the
Judgment, nor even, we think, with the other two.
36.
However, those three individual issues would give the informed observer
cause for concern, so we stand back now and look at the matter as a whole. Has
there been unfairness to Mr Healey and to those whom he represented in
this case? The qualification of those whom he represented is important,
because we think if there is apparent bias in respect of Mr Healey, that
affects him and his relations as a representative of others before this
Tribunal. We consider that the primary ground, the constitutional ground, is enough
to set this Judgment aside. The two smaller individual matters would not be
matters for calling into question the whole of the Judgment. Put together, the
three latter ones do give some further substance to the fair‑minded
observer’s concern; in other words, this is not simply an abstract exercise but
it has two concrete illustrations, and so in aggregate there has been
unfairness in the form of apparent bias.
Disposal
37.
It is common ground that, that being our finding of fact on the
application of the law to the evidence, the Judgment would be set aside and an
order made for a rehearing. That is what we do. That means that the
Respondent’s appeal can now be disposed of as well, there being no Judgment to
appeal against.
38.
We would like very much to thank Mr Healey for his measured
contribution to us today, to Ms Eeley too, whose difficult task it has
been to conduct this hearing independently, obviously now Mr Northall
being a witness and no longer counsel, and to Mr Healey also for ably
representing his former colleague Mr Stone.
39.
We have reflected following submissions on the consequences of the other
parties. All of them were served. Mr Greaves’ solicitors wrote in
raising a number of questions; he was content not to be a party to the
proceedings, but he does have an interest in Wincanton’s appeal. The persons
represented by Mr Healey are in the same boat as him, because the
unfairness to Mr Healey reflects upon them, but Mr Greaves was represented
separately. Knowing that the outcome of a successful challenge on apparent
bias, particularly by reference to the 1999 Judgment, would most likely be
setting aside the whole of the Judgment, Mr Greaves is affected by this
Judgment, and all of the cases will be set aside, with a rehearing of them all.