Bascetta & Anor v Abbey National Plc [2010] EWCA Civ 62

Case No A2/2008/1064[2010] EWCA Civ 62IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ PETER CLARK
UKEAT/0603/07/LA
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/02/2010
Before
LORD JUSTICE MUMMERYLORD JUSTICE RICHARDSLORD JUSTICE TOULSON
Between
MISS A BASCETTA & MR A SEVERNAppellantABBEY NATIONAL PLCRespondent
MISS BASCETTA in person and acting as a friend of Mr Severn for in personMR DANIEL OUDKERK (instructed by Messrs DLA Piper UK LLP) for RespondentHearing Hearing dates : 9 th December 2009
JudgmentLORD JUSTICE MUMMERY :The applications
[1]These are adjourned linked applications for permission to appeal from orders of the Employment Appeal Tribunal (EAT). The first application is for permission to appeal against an order dated 20 February 2008 dismissing appeals by Miss Bascetta and Mr Severn from the Leeds Employment Tribunal (ET). The second is for permission to appeal against an EAT order dated 22 May 2008 refusing an application for a review of the earlier decision. That application was based in part on alleged fresh evidence.[2]In this court on 27 April 2009 Hooper LJ considered the papers and refused permission to appeal. At a renewed oral hearing on 6 July 2009 Rimer LJ adjourned the applications to the full court with the appeals to follow immediately, if permission were granted. A later application for an adjournment of the appeals was refused by Maurice Kay LJ on 26 November 2009, as was an application for disclosure of documents by the Leeds ET. Miss Bascetta voiced concerns about various documents including e-mails between her and management which were referred to in the ET decision, but were not included in the trial bundle used in the ET. She also pointed to the absence from the bundle of any document providing her with written reasons for her dismissal. Her concerns were supported by a statement from her former solicitor (Rachel Lester of Russell, Jones & Walker) about the contents of the trial bundle at the ET. She also referred to the omission of emails passing between Miss Bascetta and management after 16 March 2006, though they were referred to in the ET judgment, and the absence of written reasons for dismissal pursuant to section 92 of the Employment Rights Act 1996.[3]The court explained to Miss Bascetta that permission to appeal can only be granted if the proposed appeals have a real prospect of success and that an appeal can only be brought against the decision of the ET on a question of law. This court has no jurisdiction to hear an appeal against the findings of an ET, unless a legal error can be identified.[4]Miss Bascetta is aware of how the costs regime on appeals to this court differs from the costs regime in the ET and the EAT where it is unusual to make an order for costs against an unsuccessful party. On an appeal to this court it is usual to order the unsuccessful party to pay the costs of the successful party. The amount can be substantial and can be summarily assessed, subject to objections from the paying party.

Background

[5]Miss Bascetta worked for the Abbey National from November 1978 until she was made redundant on 16 March 2006. She was Manager of the Remote Access Services (RAS) Team, which provided IT support to remote users throughout the organisation. Mr Severn, who attended the hearing and was content for Miss Bascetta to speak for him as a Mackenzie Friend, was a Technical Consultant in the RAS Team. He was employed from February 1984 until he was made redundant on 15 November 2005. Miss Bascetta was his line manager. Another member of the Team was Mr Radakovits, who was also made redundant. He brought a separate claim in the Bedford ET. He was also unsuccessful in the ET and in the EAT. His appeal in this court was heard in November 2009. Miss Bascetta acted as his Mackenzie Friend. That appeal was dismissed with costs. The application was held to be out of time.[6]The redundancies were part of a cost cutting exercise by Banco Santander which took over the Abbey National on 12 November 2004. The RAS Team was cut from 11 in number to 3. We were left in no doubt that the applicants regarded the dismissals, after long periods of service with the Abbey National, as unfair and very difficult to accept. They fought hard against them. As will appear below they also feel very aggrieved by the manner in which the hearing was conducted in ET and by the EAT’s rejection of their appeals.[7]A collective grievance was brought by the whole of Miss Bascetta’s team following several months of complaints against IT management about the validity of the redundancies. There was also an individual appeal by Miss Bascetta. She complains among other things that she was not shown a redundancy rationale.

ET decision

[8]Miss Bascetta and Mr Severn started ET proceedings for ordinary and automatically unfair dismissal in the Spring of 2006. Miss Bascetta made a protected disclosure claim in relation to an alleged falsification of Mr Radakovit’s redundancy rationale.[9]The ET heard the cases for 6 days in September 2006. The chair was Miss McWatt. There were 2 lay members- Mr Preston and Mr Khan-Malik. Miss Bascetta and Mr Severn were represented by specialist employment law counsel, Mr Chris Quinn of Cloisters Chambers. He was instructed by experienced employment law solicitors, Russell Jones & Walker.[10]In their fully reasoned judgment (running to 27 pages) dated 2 November 2006 the ET held that the dismissals were genuine redundancy dismissals and were fair. The ET dismissed a protected disclosure claim by Miss Bascetta on the ground that they were not satisfied that any such disclosure was made, or that it was the cause of her dismissal. The ET considered in detail issues of consultation, the identification of a pool, the process of, and criteria for, selection, and possible alternative employment and procedures. They made findings of fact on those issues and applied to them the standards set by the case of Williams v. Compar Maxim Ltd [1982] IRLR 83. They found that the applicants were provided with accurate and proper reasons for the termination of their employment.[11]The ET rejected the closing submissions made by the applicants’ counsel that there had been a root and branch failure by Abbey National to comply with the applicable legal standards, that it had conducted a flawed process, that it had not turned its mind to the issue of the relevant criteria, that there had been inadequate consultation and explanation and that, as exposed in the evidence at the hearing, it had determined to cover its tracks.[12]On 2 May 2007 the ET refused an application for a review. Pending that application the EAT stayed the applicants’ appeal.[13]On 27 June 2007 Elias P dismissed the appeal to the EAT under rule 3(7) of the EAT Rules as having no reasonable prospect of success. HHJ Ansell considered an appeal made on fresh grounds under rule 3(7) and dismissed it. On 13 December 2007 HHJ Birtles had an oral hearing and permitted an inter partes preliminary hearing to proceed. Issues were raised by Miss Bascetta that the ET had refused to make findings of fact on evidence given by Mr Radakovits and Miss Bascetta about her protected disclosure claim in case they impacted on his separate proceedings in the Bedford ET; that the ET failed to take into account the failure of the Abbey National to give written reasons for the dismissals; that the Abbey National was in breach of the Dispute Resolution Regulations 2004 in failing to grant a right of appeal in the internal grievance process; that fresh evidence should be admitted from Mr Ian Hillman and evidence given to the Bedford ET by Mr Radakovits which had been excluded by the ET, even though it was relevant to her protected disclosure claim; and that the ET decision was perverse and biased.[14]On 20 February 2008 the appeal had a preliminary hearing before HHJ Peter Clark. He dismissed the appeal on 29 April 2008, refused permission to appeal and later refused the application for a review. The EAT held that there was no arguable error of law by the ET in relation to the evidence of Mr Radakovits on the protected disclosure claim or in relation to the allegation of bias against the ET. A review was refused on the ground that the applicants were seeking to argue points which had already been rejected and that there was nothing in the point that the decision clashed with that of HHJ Birtles, who had only decided that the matter should proceed to an interpartes preliminary hearing.[15]On 8 June 2007 Miss Bascetta made a formal complaint about the conduct of the ET chair Employment Judge McWatt. A further complaint was made on 26 September 2008. On 29 October 2008 the Regional Employment Judge, Mr Sneath , rejected the complaint. Ms McWatt made a statement in response to the complaints against her conduct of the ET hearing. That statement was not before the EAT.

Grounds of appeal

[16]Prior to the hearing detailed written submissions were made by Miss Bascetta. She developed them during the course of the 1 day hearing during which every aspect of her argument was ventilated and noted. Although the arguments on the various points became intermingled in submissions, it is convenient to consider them separately under three main headings. Exceptionally, we gave permission for the admission of further evidence about the conduct of the hearing in the ET as contained in written statements referred to below. We refused to grant permission for other statements, as they were a mixture of evidence, which could have been obtained by reasonable efforts for use at the hearing, and opinions and arguments on the flaws in the ET decision, which were not evidence at all.

I. Bias

[17]Very serious sweeping allegations of judicial misconduct, blatant bias and breach of the right to a fair hearing by an impartial tribunal under Article 6 of the Convention are made against the employment judge who chaired the ET. Affidavits dated 27 December 2007 were submitted by the applicants to the EAT. On appeal to this court Miss Bascetta sought to introduce yet more evidence on the conduct of the hearing by the employment judge from Mr Derek Bainbridge, a witness at the hearing, in an affidavit dated 11 June 2009, Mr Eric Radakovits, a witness at the hearing, in an affidavit dated 15 June 2009 and Miss Bascetta’s mother, Mrs Marian Bascetta, who was present at the ET hearing when Miss Bascetta gave evidence, in an affidavit dated 10 June 2009. Those affidavits should have been produced earlier. As a general rule affidavits or witness statements on bias which were not produced at the EAT ought not to be put before this court without at least an explanation for their lateness. The admission of additional evidence in this court in this case should not be regarded as a relaxation of that general rule. A subsequent explanation for the lateness of the addidavits was provided.[18]Miss Bascetta describes the behaviour of Employment

Judge McWatt in extreme language:

“highly inappropriate and aggressive”, expressing feelings in “unequivocally strong terms”, expressing disapproval of the length of Miss Bascetta’s witness statement, and openly stating that “she could not understand why the case was even before her.”
It is alleged that she clearly pre-judged the outcome of the hearing and had made up her mind before hearing any evidence. She had made a “wholly unacceptable and personal remark in respect of Mr Severn regarding his receipt of a very large redundancy payment and a part pension and asking for more.”[19]The applicants referred to alleged examples of alleged open hostility, partiality, derogatory and disparaging remarks. They complained of a confrontational tone and constant interruption during the witness evidence, such as the heated exchanges during Miss Bascetta’s evidence. This was contrasted with her behaviour to the Abbey National witnesses whom, it is alleged, she assisted by offering answers and putting forward false scenarios to explain contradictions when the witnesses were exposed as not telling the truth, or as being unable to explain a forged document.[20]What is conspicuously absent from the applications is any supporting statement on the allegation of bias from the counsel or from the solicitors who represented the applicants in the ET, apart from the solicitors’ evidence mentioned in paragraph 2 above. Further, the comments obtained from the lay members who sat in the ET, Mr Ian Preston and Mr Sajjad Khan-Malik, do not substantiate the more serious allegations about the conduct and alleged bias of the Employment Judge in the chair.[21]All judges, whether they sit in the ordinary courts or in the tribunals, must not, of course, close their minds, or appear to close their minds, against a party during the hearing and before they have heard all the evidence and argument. However, expression of preliminary or provisional views in the course of exchanges with parties and their representatives during the conduct of the case is not evidence of a closed mind biased in favour of the one side or the other. More often it evidences an attentive and inquiring mind seeking to clarify the issues in the case and to manage the hearing firmly, fairly and efficiently with patience and courtesy by taking necessary steps to exclude irrelevance, minimise repetition and generally to avoid wasting time and costs.[22]I would reject this proposed ground of appeal. There is no real prospect of the available evidence satisfying the test of apparent bias that “the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”: Porter v. Magill [2002]UKHL 67; [2002] 2 AC 357 at paragraph 103. The allegations made by the applicants are too subjective and generally lacking independent corroboration. They also display a misunderstanding of the role of the Employment Judge in seeking to manage an adversarial hearing in the interests of both parties so as to avoid time wasting and costly irrelevance.

II. Inadequacy of reasons

[23]Miss Bascetta has not confined her complaint to the ET’s reasons being inadequate to enable the applicants to understand why the case was lost. She alleges that the reasons were “almost in their entirety simply untrue”, that they have been “totally fabricated” and “made up with false scenarios and findings of fact on no evidential basis.” She described the decision as “inexplicable given the facts before the Tribunal.” Miss Bascetta submitted that the ET had not dealt with her claim that she was not given written reasons for her dismissal. (The ET found in paragraph 18 that reasons had been given namely redundancy.) She also submitted that the ET had not dealt with her allegation that Abbey National was in various respects in breach of the Dispute Resolution Regulations 2004 and had failed to grant her a right of appeal in the internal grievance process.[24]These sweeping general criticisms are not substantiated or corroborated in the available evidence. They are coloured by the applicants’ subjective reactions to the factual findings of the ET, which they are unwilling to accept. Sometimes Miss Bascetta referred to the ET’s failure to deal with a particular item of evidence, but that would not by itself amount to an error of law. The ET is required to give reasons for its decision, but it is not necessary for the ET to deal with every piece of evidence before it or with every document given in evidence or with every point taken.[25]I would not grant permission to appeal on this ground as it has no real prospect of success. I agree with the view of Elias P when the matter was first considered in the EAT that the ET had heard evidence from witnesses over a period of 6 days, had addressed the issues and had given cogent and careful reasons for rejecting the claims. The applicants are not entitled, as a matter of law, to make unparticularised criticisms of the ET judgment in an attempt to re-open the findings of fact and to re-argue the case on its merits.

III. Perversity

[26]A perversity ground of appeal has to surmount the high hurdle of showing an overwhelming case that the ET decision was irrational and wrong.[27]Miss Bascetta made it clear that she thinks that the ET’s decision was perverse. She made criticisms of the ET judgment on its findings about the history of the redundancy, the reduction of costs in the area of the RAS Team, the consultation process and so on. She repeatedly claimed that she had not been given a redundancy rationale. She contended that the decision of HHJ Peter Clark clashed with that of HHJ Birtles on a number of points, including the reaction of the latter to Miss Bascetta’s complaint that the ET refused to make a finding of fact that would impact on Mr Radakovit’s proceedings in the Bedford ET.[28]She sought permission to adduce yet further evidence on the appeal in support of the perversity ground. The proposed fresh evidence included an affidavit dated 15 June 2009 from an Assistant General Secretary (Mr Richard Mellows) of the official union body Advance and an affidavit dated 15 June 2009 of a fellow employee (Mr Nevil Moutou) challenging the findings of the ET. In my judgment, those affidavits are not relevant to an appeal which is confined to questions of law. I have read them only to conclude that they should not be admitted in evidence. They demonstrate that, far from being able to show that she has an overwhelming case of irrationality on the part of the ET, Miss Bascetta’s perversity appeal is an attempt to engage this court, which has not heard any of the evidence, in re-opening the findings of fact made by the ET after it had heard all of the evidence. That is not allowed in this court. Submissions with a view to re-opening findings of fact based on the acceptance of relevant evidence do not raise a question of law, even if another ET or this court might have made different findings.[29]I would refuse permission to appeal on this ground. It is obviously an attempt to re-litigate questions of fact with which the applicants do not agree.

Costs order

[30]Abbey National’s solicitors produced a bill totalling the staggering sum of £34,000 for resisting applications for permission to appeal. When asked to comment on it Miss Bascetta said that she did not accept it, but she could not reasonably be expected to make detailed comments on it.[31]The absence of detailed and informed criticisms of the bill makes it difficult for this court to make a summary assessment of the costs. On the other hand, I do not think that it would be in the best interests of the parties to order a detailed assessment. Doing the best I can I think that a substantial reduction should be made in the total sum in the statement of costs. I am unable to accept that over 70 hours input by 8 earners was reasonable preparation in response to the applications for permission to appeal. There were no bundles to prepare. They were the responsibility of Miss Bascetta. Counsel prepared the skeleton argument. It was not reasonable for the solicitors to have spent so long on considering the relevant documents or attending on the client and taking instructions. I would summarily assess the Abbey National’s costs of the appeal at £15,000 and order that sum to be paid by the applicants. I would add that Miss Bascetta has made it clear that she and Mr Severn will not be paying “one penny of any costs”.

Lord Justice Richards:

[32]I agree.

Lord Justice Toulson:

[33]I also agree.