Stansbury v Datapulse Plc & Anor [2003] EWCA Civ 1951

Case No A1/2003/1162[2003] EWCA Civ 1951
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Wall)
Venue Royal Courts of JusticeDate Monday, 15th December 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE PETER GIBSON
LORD JUSTICE LATHAM
SIR MARTIN NOURSE
Between
JAMES MICHAEL STANSBURYAppellant-v-
Between
DATAPULSE PLC & ANOTHERRespondent
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR THOMAS KIBLING and MR THOMAS BROWN (acting Pro Bono) appeared for Appellant. for The Respondents did not appear and were unrepresented.
J U D G M E N TMonday, 15th December 2003

LORD JUSTICE PETER GIBSON:

This

[1]is an appeal by James Stansbury from the order made by the Employment Appeal Tribunal ("the EAT"), Wall J presiding, on 8th May 2003. Thereby the EAT dismissed Mr Stansbury's appeal from the decision of an Employment Tribunal ("the ET") sitting at Reading. By that decision, the Extended Reasons for which were sent to the parties on 15th August 2001, the ET decided that Mr Stansbury was not dismissed unfairly by his employer, the first respondent, Datapulse Plc ("Datapulse").[2]I need give only the barest outline of the factual circumstances of Mr Stansbury's employment and dismissal as this appeal is limited to procedural grounds arising out of the behaviour of a lay member of the ET. Mr Stansbury was employed by Datapulse as a project manager for five years until dismissed on 20th September 2000 on the ground of redundancy. On 19th December Mr Stansbury lodged an originating application at the ET complaining of unfair dismissal. He joined as respondents not only Datapulse but also its parent company, Troy Holdings International Plc. The ET, consisting of the Chairman, Mr Ross, and two lay members, Mr Carruthers and Mr Eynon, heard his case on 25th May and 20th July 2000 when they reserved their decision, meeting to consider their decision on a third day. Mr Stansbury was represented by counsel, Mrs Jennifer Kavanagh, instructed by solicitors Chance, Coleman & Co for whom a paralegal, Mrs Lamacraft, attended the hearing. The respondents were represented by an employed barrister, Mr Meredith Thompson. The ET rejected Mr Stansbury's complaint, finding that he was not unfairly dismissed.[3]Mr Stansbury, acting in person, sought a review of the ET's decision. Among the many points which he took was this:
"The Tribunal erred in finding its Unanimous Reserved Decision as one of the Members not only fell asleep during the hearing on 25 May 2001 but during a break on 20 July 2001 the same Member did express his disapproval of the Chairman and there was an extremely strong odour of alcohol on the Members breath. This can further be substantiated by the Applicants Counsel Mrs Kavanagh."
The application was refused by the Chairman on 3rd October 2001. He said in paragraph 13 of his decision that the alleged conduct of the member should have been, but was not, drawn to the attention of the ET at the hearing, and reference was made to R v Moringiello, The Times 25th July 1997.[4]Mr Stansbury, still acting in person, appealed on 24th September 2001 from the ET's substantive decision. Among the many grounds of appeal he repeated his allegation about the member who, he says, was "apparently in a drunken state". He also swore an affidavit on 9th November 2001 again repeating the allegation in similar terms.[5]On 17th April 2002 the EAT, following its normal practice when such allegations are made, directed that comments on Mr Stansbury's allegation be obtained from each of the ET members, from the barristers on both sides and from Mrs Lamacraft.[6]The Chairman in response made the following comments:
"2. At no time during any part of the hearing was I aware that either of my two lay members fell asleep; nor at any time either during or, indeed, after the hearing did either of the parties' representatives bring this allegation to my attention. Had they done so then I would have made enquiries and taken appropriate action. 3. Since clearly I was not present when one of my members is alleged to have expressed disapproval of me I was unaware of this. Again, at no time did either representative mention this matter to me. 4. During the course of the hearings which lasted two days I did on occasion smell alcohol on the breath of one of my members, Mr Eynon. I had no reason to think that this in any way impaired his ability to participate properly in the proceedings. Again, at no time did either representative mention this matter to me or make any representations about Mr Eynon's continued participation in the proceedings."
[7]Mr Carruthers, who, we know, was not the member the subject of the allegation, commented:
"a. I did not observe my fellow lay member fall asleep. Whilst concentrating on the case being presented it is not easy to look back to the other side of the chairman without standing up to make such observation. b. I did not witness my fellow lay member make the alleged comment about the chairman c. I am conscious of the fact that my fellow lay member was outspoken on a number of matters to do with the case but these were always resolved by the chairman in a fair and equitable way. d. I do not know whether or not my fellow lay member took alcohol at any time during the hearing. The words '... in a drunken state' are, in my view, not substantiated."
[8]Mr Eynon rightly assumed that he was the member concerned. He said in his letter of 30th April 2002 in response:
"1. Any comments regarding the Chairman were not made in any way in relation to his conduct of the case but in relation to how he was dealing with me personally on a question and answer basis. 2. I have never fallen asleep during a hearing although I may on occasion close my eyes to concentrate. 3. The allegations of smelling of alcohol I dispute."
It is to be noted that he does not deny having taken alcohol.[9]Mrs Kavanagh on 29th April 2002 commented as follows:
"Falling asleep 2. Mr Stansbury says that a lay member of the tribunal fell asleep during the hearing. This is not something which I witnessed or which Mr Stansbury or any other person brought to my attention during the hearing. Drunken lay member 3. The appellant maintains that the lay member was plainly drunk. This was never raised by Mr Stansbury with the Solicitor's representative Mrs Lamacraft, or with me at the time of the hearing. Consequently I never raised the same during the hearing. 4. As to that lay member's behaviour at the hearing it is fair to say his behaviour was rather odd, and was such as to give the impression that he may have been drunk. Throughout the hearing he shuffled about a little, made facial expressions and occasionally made comment to the chairman. 5. Mr Stansbury is clearly of the view that this supports his view that the member was drunk. On reflection I cannot say whether this member was simply a more animated member than usual, whether he is an eccentric character or whether he was suffering some medical ailment or whether indeed drunk. However I cannot recall him smelling strongly of alcohol, slurring his words or falling about in a drunken stupor. 6. In any event his conduct did not interfere with the hearing, for as I recall he played no part in questioning the witness, and indeed apart from his occasional muttered comment to the chairman he remained quiet throughout the hearing. 7. There was only one occasion when I had cause to be close enough to the lay member to smell his breath. That was when myself, the Appellant and Mrs Lamacraft were waiting to return to court, and the said lay member had to pass by the Respondents and through us. It was an awkward moment and the lay member muttered a comment. I do not recall the precise words said but I do recall a slight smell of alcohol, yet as we were returning from lunch it was my assumption that he had taken a little something with his lunch. 8. For the avoidance of doubt it must be stated that during the hearing I did not raise the lay members comment with the chairman because: i) It was not an issue during the hearing. It only became an issue once Mr Stansbury received the determination of the Tribunal, ii) Even if I had been concerned at the hearing, which I was not, it would have been highly improper of me to cast aspersions on the demeanour of the lay member with no good, solid reason to do so."
[10]Mr Thompson commented that he had observed nothing untoward in the behaviour of any lay member; and three employees of Datapulse provided affidavits to much the same effect, although one of them, Mr Waddington, recalled an ET member momentarily closing his eyes on one occasion, concentrating, Mr Waddington thought, rather than sleeping.[11]On 17th July 2002 Mr Stansbury wrote to the EAT applying for clarification of the Chairman's comments on a number of points, one of which was:
"7. Is it true, during the hearings on 25 May 2001 or 20 July 2001, the Chairman, Mr Ross, was given to raising his voice on at least two occasions in a clear attempt to re-establish the attention of Mr Eynon, who not only had fallen asleep, but was also snoring and hence gave cause for the Chairman to raise his voice?"
That application was refused.[12]At the full hearing before the EAT Mr Stansbury was questioned about that allegation and said that the Chairman, recognising that Mr Eynon was asleep, raised his voice to bring Mr Eynon back into consciousness and that Mr Eynon then gave a snort as he woke up.[13]At the preliminary hearing of the application before the EAT on 13th September 2002, His Honour Judge Burke QC presiding, the EAT rejected all the grounds of appeal relating to the substantive merits of the case. However, the EAT were shown an unsigned Opinion provided by Mrs Kavanagh to insurers of Mr Stansbury. That was sent to the insurers on 17th September 2001 and dealt with the merits of an appeal from the ET's decision. In that opinion she said this:
"8. Another ground for appeal could be that the tribunal misconducted itself. In the present case that ground does have some merit because of the actions of one of the tribunal members who was plainly drunk and not following the proceedings. In order to do so he is going to have to establish with the Reading Industrial Tribunal the name of that drunken panel member ... 9. If the Appellant is to go down this route he will require an affidavit from both myself and Mrs Lamacraft to substantiate his allegations as to the drunken demeanour of the panel member."
The EAT noted the disparity between what Mrs Kavanagh had said in her Opinion on 17th September 2001 and what she had said on 29th April 2002. The EAT allowed the appeal to go ahead to a full hearing limited to that procedural ground.[14]By an order dated 13th February 2003 the EAT required Mrs Kavanagh to file an affidavit by 27th February 2003 explaining the apparent conflict between her opinion and her comments to the EAT. Mrs Lamacraft was also ordered to provide an affidavit by a particular date, but never did so. Mrs Kavanagh filed an affidavit, but only out of time. At the full hearing of the appeal Mr Stansbury objected to that affidavit and the EAT agreed to deal with the appeal without looking at it.[15]The order of 13th February 2003 also required the production of documents by Mrs Kavanagh and Mr Stansbury. The following additional documents were produced:(1) a letter dated 19th August 2001 from Mr Stansbury to his solicitors in which he said: "Of the "Unanimous" decision, I fail to see how this can be when not only did one of the Members (either Mr Carruthers or Mr Eynon) fall asleep on 25 May, but on his return from a five minute break on 20 July, he not only expressed his disapproval of the Chairman, but there was an extremely strong smell of alcohol on his breath which no doubt Mrs Kavanagh will recall";(2) a letter dated 4th September 2001 from Mrs Kavanagh to Mr Stansbury's solicitors in which he referred to the grounds of appeal drafted by Mr Stansbury and said: "... should Mr Stansbury require evidence, in the form of a statement, from me to verify the conduct of the members of the panel I would happily oblige";(3) a letter dated 18th September from Mr Stansbury to Mrs Kavanagh in which he asked for an affidavit from her and Mrs Lamacraft and said: "Of the drunken Member, you may recall there was a short break following Mr Waddington's evidence and before the commencement of my evidence at approximately 12 noon. During this break the alleged Member was returning from the men's room and expressed his disapproval of the Chairman. In doing so it was evident he had been drinking alcohol and was in a drunken state and did further, on occasions during the hearings on both 25/5/01 and 20/7/01 fall asleep";(4) an e-mail sent on 22nd November 2001 from Mrs Kavanagh to Mr Stansbury's solicitors in which she said: "I accept that one of the tribunal members was drunk, and although I am told that Mr Stansbury has said that one of the members was asleep I am afraid I cannot confirm that. It was not something I witnessed."[16]Mr Stansbury appeared in person at the full hearing of his appeal. Datapulse by then had gone into administrative receivership and neither respondent was represented. The EAT may not have had as much assistance as would have been appropriate on the difficult issue with which they were faced.[17]Wall J, giving the judgment of the EAT, carefully reviewed the evidence, rightly saying that the EAT thought it important to look at all the evidence in the round. He described the EAT's function as being to decide whether or not Mr Stansbury had a fair hearing before the ET within Article 6 of the European Convention on Human Rights ("the Convention") and whether the alleged behaviour of Mr Eynon was sufficient to have made the hearing unfair. The judge noted, first, that this was a unanimous reserved decision and, second, that in the light of the rejection by the EAT at the preliminary hearing of Mr Stansbury's appeal on the merits, there was no criticism of the Chairman or of the ET's findings of fact or rulings on the law.

The judge in paragraphs 36 to 38 expressed the EAT's conclusion:

"36. In these circumstances we have to ask ourselves whether, in the interests of justice, this case needs to be sent back for a rehearing because the hearing before the Tribunal was not Article 6 compliant. Having discussed the matter, we have come to the view that this is not a case in which Article 6 has been so seriously breached as to require the matter to be reheard. We are not, of course, judges of fact. We do not know and cannot know exactly what happened in the Tribunal. It is not our function to resolve any differences in the views expressed, at different times, by Mrs Kavanagh or what Mrs Kavanagh said at different times to Mr Stansbury. It is, it seems to us, reasonably clear that Mr Eynon had consumed alcohol and it may be that, as he himself says, when closing his eyes he did fall asleep. Assuming for present purposes that either or both of those two allegations are established, not only would that be unsatisfactory, but they would constitute grounds for complaint under Article 6. 37 Ultimately, we have to look, we think, at all the facts in the round. We look at the Decision of the Tribunal, with its careful reasoning. We look at the fact that the substantive decision of the Tribunal has been upheld by this Tribunal. Even if we assume, for this purpose, in Mr Stansbury's favour that Mr Eynon may have fallen asleep and did consume alcohol, that is not sufficient in our judgment to enable this Tribunal to say the hearing was unfair and that it is in the interests of justice for this case to be reheard. We distinguish this case from Kudrath v Ministry of Defence, an unreported decision of the EAT, Morrison J presiding, on 26th April 1999. 38 We have some sympathy for Mr Stansbury, but on the facts of this case we are quite satisfied that the Article 6 argument does not succeed, and, therefore, it follows that the appeal will have to be dismissed."
[19]Mr Stansbury applied in person before me for permission to appeal to this court. He sought permission to appeal on a large number of grounds, but I only gave him such permission on two grounds. One was on the correctness of the approach of the EAT to their function in dealing with the allegation of improper conduct by a member of the ET, the EAT having said that they were not judges of fact and did not have to resolve factual differences in the evidence relating to that conduct. The other was on the correctness of the EAT's view that, even if the ET member had been drinking alcohol and had fallen asleep, that was not sufficient for the EAT to say that the hearing was unfair.[20]On this appeal Mr Stansbury is represented by Mr Kibling and Mr Brown appearing under the Bar pro bono scheme. We are most grateful to them for their assistance, the more so because the respondents are again unrepresented at this hearing.[21]I will start with the first point on the EAT's function, although, understandably, Mr Kibling has concentrated on the second. Where a complaint is made on appeal to the EAT about the conduct of a member of the ET, the first question which arises is whether the EAT should entertain that complaint at all where the complainant had been represented by counsel at the ET hearing but the complaint had not been raised then. That question, although not raised by the respondents, was considered by the EAT, no doubt because of the reliance by the Chairman of the ET, refusing the application by Mr Stansbury for a review, on R v Moringiello. The EAT said that they took no point against Mr Stansbury that the complaint had not been raised before the ET. In so doing they followed what had been said by the EAT in Kudrath. Morison J, the then President of the EAT, giving the judgment of the EAT, referred to an allegation about the Chairman of the EAT in that case closing his eyes and so being, or appearing to be, asleep. The EAT expressed great concern about this, saying:
"It is the duty of the tribunal to be alert during the whole of the hearing, and to appear to be so."
They continued a little later:
"Finally, we wish to say that whilst it is clearly preferable that the advocates, representatives or parties themselves should complain, at the time, that the Tribunal does not appear to be fully alert, in the context of litigation in the Employment Tribunals we regard it as unrealistic to expect that that will always be sensible or practicable. In the Moringiello case, there was a criminal trial before a Judge and jury. The jury are the fact finders. Both parties were represented by counsel at the hearing. It would have been possible, without difficulty, to make an application to the Judge, in the absence of the jury, about the Judge going to sleep, without fear that umbrage would or might be taken and the facts found against the complainant. In the Employment Tribunal, in many cases, one of the parties will be unrepresented by a lawyer. It would, we think, be a denial of justice were the EAT to refuse to intervene where a Chairman appeared to fall asleep, or was guilty of any other misconduct, if no complaint had been made at the time. There is an obvious distinction between the circumstances of the Moringiello case and what happens in Employment Tribunals. Whilst we would hope and expect that a professional advocate would raise the matter then and there, this expectation is not to be regarded as a precondition to making an appeal here on that ground."
[22]However, in Red Bank Manufacturing Company Limited v Meadows [1992] ICR 204 at page 211, Tucker J, giving the judgment of the EAT, expressed a different view, saying:
"... transient matters such as a member falling asleep ... must be raised at the time and in the course of the proceedings if they are to form the ground of any complaint."
The expression of that view does not appear to have been drawn to the attention of the EAT in Kudrath.[23]This point is not, in strictness, a live issue on this appeal, as the respondents have put in no Respondent's Notice and do not appear. However, in my judgment the EAT could properly decide, as they did in the present case, that the fact that the point had not been raised before the ET should not prevent the point being raised before the EAT on appeal. It is always desirable that a point on the behaviour of the ET be raised at the ET in the course of the hearing, but it is unrealistic not to recognise the difficulty, even for legal representatives, in raising with the ET a complaint about the behaviour of an ET member who, if the complaint is not upheld, may yet be part of the ET deciding the case.[24]Further, Mr Kibling drew to our attention McGonnell v United Kingdom [2000] 30 EHRR 289, where the question which arose was whether the applicant, who was legally represented, by failing to take an objection to the Bailiff of Guernsey participating in the determination of the applicant's planning appeal, thereby waived his right to object to the independence and impartiality of the tribunal determining the appeal. The European Court of Human Rights said that the matter turned on what was reasonable in the particular circumstance of the case. In my judgment the approach suggested by Morison J in Kudrath was right. It is appropriate to consider a failure to raise an objection before the ET against the test of reasonableness in all the circumstances of the case.[25]If the EAT entertains a complaint, what then is their function? Contrary to the view of the EAT in this case, and with all respect to them, it seems to me plain that the EAT may have to assume the role of judges of fact in relation to a complaint about the behaviour of a member of the ET, and that, if there are factual disputes relating to the complaint, the EAT may have to resolve them. That was plainly the view of the EAT in Facey v Midas Retail Security [2000] IRLR 813. In that case the EAT, the then President Lindsay J presiding, were concerned as to the procedures which the EAT should adopt to deal with allegations of misconduct, bias or procedural impropriety at the ET. In the particular case the allegations of bias and prejudice raised contested views of primary fact. Lindsay J recognised that it was for the EAT hearing the appeal in which the allegations were made to determine that issue, and he gave detailed guidance as to what the EAT should do in such circumstances. This included, if necessary, requiring the attendance at the EAT, for cross-examination, of witnesses as to the contested facts: see page 819 paragraph 39. On this I respectfully agree with the EAT in Facey. It is not, of course, necessary in every case to decide the question of fact. In the present case what the EAT in effect did was to ask whether, on the assumption that either or both of the allegations made by Mr Stansbury that Mr Eynon had consumed alcohol and fell asleep was or were established, that was that sufficient to vitiate the fairness of the hearing so as to require the EAT to order a rehearing. That was an approach properly open to them. In fact, as they rightly said, on the evidence it was reasonably clear that Mr Eynon had consumed alcohol. They went on to say that it may be that when he closed his eyes he fell asleep. Thus, I accept that on the first ground on which Mr Stansbury was given permission to appeal, although the EAT were wrong to have stated their function in the way they did, that is not determinative of this appeal.[26]That brings me to the second point on which Mr Stansbury was given permission. Were the EAT, on those factual assumptions, correct to find that the hearing was fair? In reaching their conclusion, the EAT appear to have been heavily influenced by the considerations that(i) the ET decision was unanimous and reserved, and(ii) the correctness of that decision was upheld by the EAT at the primary hearing of the appeal. With respect to the EAT, neither point was relevant to the fairness of the hearing. A hearing by the ET may be unfair by reason of one member not being able, through the consumption of alcohol or falling asleep, to give the hearing his full attention. If the hearing was unfair because of the misbehaviour of a member of the ET, the decision is not saved from being unfair by the fact that the decision was unanimous and reserved or by the fact that, on the findings made by the ET at the flawed hearing, there could be no successful appeal. If there was an unfair hearing such that there had to be a retrial by a differently constituted ET, then at the retrial the new ET could make quite different findings.[27]The question is whether, on the factual assumptions by the EAT, there was a proper hearing. In Whitehart v Raymond Thomson Ltd, an unreported decision on 11th September 1984 of the EAT, Popplewell J presiding, this was said by the EAT in relation to a case where a member of the tribunal had dozed off once, if not twice:
"It is axiomatic that all members of a tribunal must hear all the evidence and to have a trial in which one member of the tribunal is asleep even for a short part of the time, cannot be categorised as a proper trial. Justice does not appear to have been done."
That is cited in the Red Bank case [1992] ICR 204 at page 209. No less strong a comment might be made of an ET member who has fallen asleep and is known to have consumed alcohol. That might well have impaired the member's ability to attend to the evidence and submissions before the Tribunal.[28]The EAT in Kudrath were, in my judgment, right to say that it was the duty of the Tribunal to be alert during the whole of the hearing, and to appear to be so. It seems to me that an analogy with cases of bias is appropriate. In cases of bias the appearance of bias, as observed through the eyes and ears of a fair-minded and informed observer, will vitiate a hearing: see, for example, Porter v Magill [2002] AC 357 at 394 per Lord Hope. A member of a tribunal who does not appear to be alert to what is being said in the course of the hearing may cause that hearing to be held to be unfair, because the hearing should be by a tribunal each member of which is concentrating on the case before him or her. That is the position, as I see it, under English law, quite apart from the European Convention on Human Rights. It is reinforced by Article 6(1) of the Convention. As was said by the European Court of Human Rights in Kraska v Switzerland [1993] 18 EHRR 188 at page 200, paragraph 30:
"The effect of Article 6(1) is, inter alia, to place the 'tribunal' under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties without prejudice to its assessment of whether they are relevant to its decision."
And at page 201, paragraph 32:
"The Court had already stressed on numerous occasions the importance of appearances in the administration of justice, but it has at the same time made clear that the standpoint of the persons concerned is not in itself decisive. The misgivings of the individuals before the courts, for instance with regard to the fairness of the proceedings, must in addition be capable of being held to be objectively justified."
[29]In Lawal v Northern Spirit Ltd [2003] ICR 856 Lord Steyn, giving the opinion of the Appellate Committee of the House of Lords, said in paragraph 22:
"What the public was content to accept many year ago is not necessarily acceptable in the world of today. The indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago."
That was said in the context of considering whether there was an appearance of bias and whether the tribunal was impartial when counsel appeared before a panel of the EAT which included lay members with whom that counsel had previously sat as a part-time judge.[30]In my judgment the EAT in the present case were wrong, with all respect to them, to hold that, on the assumptions which they had made, the hearing was fair and complied with Article 6 of the Convention. In the particular circumstances on the assumed facts the requirement that the hearing be seen to be fair was not satisfied.[31]That then takes me to the question whether this court should decide the factual issue as to the alleged drunkenness of Mr Eynon and the allegation that he fell asleep. In my judgment this court can, and should, decide the factual question. Were we to remit the issue, the EAT would be in no better position than we are to consider all the evidence which is to be found in the documents. There can, in my judgment, be little doubt that Mr Eynon had consumed alcohol. It had been noticed that his breath smelt of alcohol. That had been noticed by the Chairman as well as by Mr Stansbury; and Mrs Kavanagh, whatever the reason for her more cautious statements in April 2002, had been saying much closer to the relevant times that Mr Eynon had plainly been drunk.[32]There is less corroboration about the allegation by Mr Stansbury that Mr Eynon had fallen asleep during the course of the hearing. Nevertheless, Mr Waddington had seen Mr Eynon close his eyes momentarily, and, more importantly, Mr Eynon himself had said that he did from time to time close his eyes, but only, he suggested, to concentrate. Mr Stansbury is clear in his evidence that Mr Eynon did fall asleep. The fact that Mr Eynon had consumed alcohol lends plausibility to his evidence. The odd behaviour of Mr Eynon had also been commented on by Mrs Kavanagh, and that too lends support to the view that his consumption of alcohol had the effect of causing Mr Eynon not to concentrate as he should have done nor to be fully alert during the course of the hearing. Mrs Kavanagh had said that Mr Eynon was not following the proceedings. In my judgment therefore the allegation that there had been such misbehaviour on the part of Mr Eynon has been made out on a balance of probabilities.[33]Finally, what should this court decide in these circumstances? Did Mr Stansbury have the fair hearing to which he was entitled both under the general law and under Article 6? In my judgment, a hearing by a tribunal which includes a member who has been drinking alcohol to the extent that he appeared to fall asleep and not to be concentrating on the case does not give the appearance of the fair hearing to which every party is entitled. Public confidence, as Mr Kibling pointed out, in the administration of justice would be damaged were we to take the view that such behaviour by a member of the ET did not matter. In my judgment we should say firmly that the conduct of Mr Eynon at the hearing was wholly inappropriate for any member of a tribunal.[34]In the result, Mr Stansbury not having had the fair hearing to which he was entitled, this appeal should be allowed, the decision of the ET must be set aside and the case should be remitted for a rehearing before a differently constituted ET. However, before Mr Stansbury proceeds on such a course, I would urge him to consider whether there is any real point in doing so. Datapulse is insolvent, and to embark on a fresh hearing before the ET may well produce no practical benefit for him. Mr Kibling was good enough to indicate that he would take it upon himself to advise Mr Stansbury, and I commend him for doing so.[35]However, for the reasons which I have given, I would allow the appeal and make the order which I have indicated.

LORD JUSTICE LATHAM: I agree.

SIR MARTIN NOURSE: I also agree.

Order

Appeal allowed as above.

Cited in 19 later judgments

and 10 more of the most senior