“The Claimant objects to the continued involvement of Chairman Kolanko in these proceedings. “Appeal on case 3101168/2004 has been remitted to the Employment Appeals Tribunal and pending further consideration. The nature of the appeal raises serious questions about both the partiality of Chairman Kolanko and the appropriateness of his sitting in the substantive hearing. “A further complaint to the Lord Chancellor’s Department/ Department of Constitutional Affairs has been submitted in conjunction with the appeal to the EAT. The Claimant has a genuinely held belief that Chairman Kolanko exhibited apparent bias not only throughout the hearing of the aforementioned case but also in the pre-hearing review leading up to the full hearing. Notwithstanding the existence of serious concerns relating to Chairman Kolanko’s conduct towards the Claimant, his witnesses and the Respondent, there occurred mis-directions and errors in the application of the law which lead to utter perversity in the finding of fact established and subsequent decision. “It is requested that Chairman Kolanko recuse himself from any further involvement in the Claimant’s case without delay and that, subject to Part 2 of this application, if it is appropriate to hold a Pre-Hearing Review, a new Chairman be appointed accordingly.”
“Chairman MP Kolanko presided over proceedings in relation to the first action 3 101 16812004 which included the full hearing which commenced on27th September 2004 and a pre-hearing review held on27th August 2004 . As a procedural issue, it is contended that in accordance with theEmployment Tribunals (Constitution and Rules of Procedure) Regulations 2001 , Chairman Kolanko should have been prohibited from sitting in the full hearing due to his involvement in the pre-hearing review. “Serious concerns have been raised relating to Chairman Kolanko's apparent bias toward the Respondent during the pre-hearing review, following which you may recall I wrote to you on the 3rdSeptember 2004 expressing some of my thoughts. Mr Kolanko made a number of decisions as part of the pre-hearing review process which included taking legal advice from the Respondent's counsel during the hearing, changing the name of the Respondent to a company which did not exist and declining witness orders for the Claimant whereas they were provided for the Respondent, stating 'Your request for witness orders is refused...there seems little purpose in ordering witnesses who do not wish to give evidence and cannot be the subject of cross examination by the person calling them...' (Directions dated 14thSeptember 2004) “Throughout the full hearing, Chairman Kolanko overlooked numerous instances of serious misconduct on the part of the Respondent which included the breaching of several Tribunal Orders, ignoring disclosure requirements, making dishonest representations to the Tribunal about them and pressurising and victimisation of Claimant witnesses (to which they offered direct evidence). These are only a few examples of the Respondent's misconduct that were raised in open Tribunal and it should be noted that the Respondent suffered no detriment whatsoever in spite of many requests and Applications made by the Claimant. “In addition to procedural issues, the Chairman treated Claimant witnesses badly, potentially discriminating against the Claimant's only ethnic minority witnesses by first having their statements almost entirely struck out and secondly reprimanding them when they attended as observers - when Respondent witnesses attended as observers and acted in a disruptive manner no comment was made towards them. “Witnesses to proceedings have commented about the unfair and harsh treatment of the Claimant throughout the 64 day hearing, which Chairman Kolanko allowed to be extended from the original 12 day period set by Chairman Kurrein. Not only was this contrary to overriding principles of justice which govern Employment Tribunals (especially as the Claimant was a litigant in person) but this occurred as Chairman Kolanko allowed irrelevant evidence to be entered into the proceedings which substantially distracted the Tribunal from the hearing issues relating to the originating particulars. Particular note should be given to the fact that the Chairman allowed matters to be progressed which he knew would seriously prejudice the second action, this in spite of applications asking him to set them aside in the interests of justice. “Having procured an utterly perverse decision with errors in both the application of the law and findings of fact, Chairman Kolanko is now involved in the hearing of the second action 3104051/2004 intending to sit alone on 3rdAugust 2005 in a pre-hearing review. The Claimant is fearful that the Chairman's apparent bias and previous errors will unfairly prejudice this new action. Particular objections to this are outlined in the attached Application.”
“Further to my letter of 5 July, I have been able to look into the matters raised in your letter and also consider your application. “Dealing first with your letter of 5 July, you have raised a number of matters concerning the hearing in case no. 3101 168/04. The hearing took place over 36 days in September and October 2004 and January and February 2005. The members met for a further 10 days to consider the decision, and the judgment with reasons, set out in a 65 page document, was sent to the parties on 27 April. “I understand that you have entered an appeal against that judgment to the Employment Appeal Tribunal. “In essence, the majority of your letter of 5 July concerns the conduct of the proceedings by the Tribunal in your first set of proceedings. As these are now the subject of an appeal to the Employment Appeal Tribunal, I consider that it would not be appropriate for me to comment and I will consider the matter once the Employment Appeal Tribunal gives its judgment. “The conclusion of your letter and your application relates to your second set of proceeding, namely case no. 3104051/04, in which you have again raised discrimination complaints against Lloyds Bank and others. In essence, you are disappointed that Mr Kolanko is involved in these new proceedings when you have raised issues of bias etc. against him in relation to the first set of proceedings. “The situation is that the allocation of Chairmen to hear cases is a matter for the Regional Chairman and, in carrying out that function, I am not influenced by requests by any party for the case to be heard or not to be heard by any particular Chairman. “In the second set of proceedings there is a Pre-Hearing Review to take place on 3 August to determine applications made, which include applications to strike out the proceedings on the basis that the fats or issues have already been determined in the first set of proceedings. “It appears to me that it is advantageous fir the Chairman of the Tribunal that determined the first set of proceedings to deal with that Pre-Hearing Review. “Accordingly, your request for Mr Kolanko not to conduct that Pre-Hearing Review is refused. “Should the proceedings continue beyond that point, then I will give consideration to whether it would be appropriate for Mr Kolanko to continue to hear the case in view of the decisions reached by the Tribunal in the first set of proceedings. “As the second set of proceedings were held in abeyance for some time, it is inappropriate for the Pre-Hearing to be cancelled to await the outcome of the appeal in the first set of proceedings. “Yours sincerely …”
“One of the clearest examples of apparent bias was when on10 February 2004 (Day 34), to signal the adjournment for a morning break at 11.15, Chairman Kolanko rose and turning to Mr Gidney only, he proceeded to nod at the Respondent’s counsel Mr Gidney, without any acknowledgement either of the claimant or his aid. This was a blatant and overt act noticed only by the Claimant and his aid but also Tribunal observers present; it was considered offensive to the Claimant and his aid and it is stipulated that a reasonable and fair-minded individual present it would have looked both biased and suspicious in the extreme.”
“2. The hearing was prefaced by repeated application by Mr Ansar that I should recuse myself from hearing the applications on the grounds that Mr Ansar had appealed an earlier Judgment of which I was the Chairman, and had made criticisms of the manner in which I had conducted the case, in particular, that I had displayed bias against him. “3. Mr Ansar had made his complaint to the Regional Chairman, who determined that as I heard the first case it was appropriate for me to hear this case. The Regional Chairman, accordingly, declined Mr Ansar’s request that I recuse myself. “4. Having indicated to Mr Ansar that the Regional Chairman had ruled on the matter, Mr Ansar did not pursue his claim for me to stand down, but asked that I should record that my continuing to hear the Pre-Hearing Review was not with his consent.”
“l. The test to be applied as stated by Lord Hope in Porter v Magill 620021 2 AC 357, at para 103 and recited by Pill LJ in Lodwick v London Borough of Southwark at para 18 in determining bias 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. “2. If an objection of bias is then made, it will be the duty of the Chairman to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance: Locabail at para 21. “3. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour: Re JRL ex parte CJL [l9861] 161 CLR 342 at 352, per Mason J, High Court of Australia recited in Locabail at para 22. “4. It is the duty of a judicial officer to hear and determine the cases allocated to him or her by their head of jurisdiction. Subject to certain limited exceptions, a judge should not accede to an unfounded disqualification application: Clenae Ptv Ud v Australia & New Zealand Banking Group Ltd [l9991] VSCA 35 recited in Locabail at para 24. “5. The EAT should test the Employment Tribunal's decision as to recusal and also consider the proceedings before the Tribunal as a whole and decide whether a perception of bias had arisen: Pill LJ in Lodwick, at para 18. “6. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without something more found a sustainable objection: Locabail at para 25. “7. Parties cannot assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case. Something more must be shown: Pill LJ in Lodwick above, at para 21, recited by Cox J in Breeze Benton Solicitors (A Partnership) v WeddellUKEAT/0873/03 at para 41. “8. Courts and tribunals need to have broad backs, especially in a time when some litigants and their representatives are well aware that to provoke actual or ostensible bias against themselves can achieve what an application for adjournment (or stay) cannot: Sedley LJ in Bennett at para 19. “9. There should be no underestimation of the value, both in the formal English judicial system as well as in the more informal Employment Tribunal hearings, of the dialogue which frequently takes place between the judge or Tribunal and a party or representative. No doubt should be cast on the right of the Tribunal, as master of its own procedure, to seek to control prolixity and irrelevancies: Peter Gibson J in Peter Simpler & CO Ltd v Cooke [l986] IRLR 19 EAT at para 17. “10. In any case where there is real ground for doubt, that doubt should be resolved in favour of recusal: Locabail at para 25. “11. Whilst recognising that each case must be carefully considered on its own facts, a real danger of bias might well be thought to arise (Locabail at para 25) 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 the credibility of that individual could be significant in the decision of the case; or, “c. in a case 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 such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or, “d. on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on their ability to try the issue with an objective judicial mind; or, “e. for any other reason, there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues.” “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 the credibility of that individual could be significant in the decision of the case; or, “c. in a case 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 such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or, “d. on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on their ability to try the issue with an objective judicial mind; or, “e. for any other reason, there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues.”
“He tells ... us that his criticisms are directed, in particular, at me personally. That, he says, stems from my conduct in relation to a hearing on an application for permission to appeal on related proceedings … “7. It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course, because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judges were to recuse themselves whenever a litigant - whether it be a represented litigant or a litigant in person - criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases, simply by criticising all the judges they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticised - whether that criticism was justified or not.”
“‘Secondly, the very fact that Mr Reilly had complained about the Chairman's conduct made it inappropriate that the Chairman should sit. The significance of the complaint lay in the fact that it had been made and that the Chairman knew that he had complained and was aware of the specific allegations made about his conduct.”
“27. In this case, we must, as we stated in paragraph 10 above, look at what the position was when this application for recusal was made. There was an outstanding complaint (in the two letters, as in Breeze Benton, both to the Regional Chairman and to the Department of Constitutional Affairs), and in the Notice of Appeal, of bias and/or misconduct against Mr Kolanko as Chairman of the very recent 36-day hearing. Those allegations had not been, and could not be, until the hearing of the appeal which has only now taken place, resolved. What was necessary was to look at the nature of those allegations, and to see whether their making rendered it inappropriate for the case to proceed within the confines of the authorities to which we have referred. The nature of the allegations may, on occasion, be decisive, although it does not follow that, even if an allegation of wholly outrageous conduct, such as the taking of a bribe, were made, that that would necessarily qualify as a ground for recusal, if it was manifestly fanciful or unfounded. But the allegations in this case were in any event not of that kind. We have analysed them in detail in our first judgment, and found that they are without substance, but even at a time when they had not yet been adjudicated, it could be seen that they fell into the three categories which we have described in paragraph 31 of that judgment: criticism of the allegedly one-sided approach of the Chairman to the making of directions or orders, the conduct of the hearing and the control over leading questions and cross-examination, the exemplars being given amounting to a smattering of alleged occasions over a 36-day hearing, with "one of the clearest examples of apparent bias"being said to be that on one occasion, while Counsel for the Respondent was on his feet and it was intended to take a mid-morning break, it was at that Counsel that the Chairman nodded to indicate a suitable time to rise.” “28. We have no doubt whatever that the Regional Chairman was correct not to respond to the Appellant's application, prior to the hearing, to alter the Chairman, and to direct the Chairman to sit, and that the Chairman was correct to form his own conclusion that he was not obliged to recuse himself. The Appellant pointed out that two of the matters mentioned by Cox J in Breeze Bentonwere satisfied, namely the factual connection between the two hearings was similar, and the fact that little time had passed. However Amec makes clear that it may well make no difference even if the factual matrix of the two hearings is identical, and as for the passage of time, this is not a case, as in Lodwick, where any issue relating to the passage of time would be relevant. In our judgment, the existence of the complaints, and the nature of those complaints, did not render it necessary or appropriate that the Chairman should stand down or decline to hear the case; and there was nothing more (to import the Locabail and Lodwick enquiry).”
Showing the 50 most senior of 75.