Henderson v London Borough of Hackney and Anor [2011] EWCA Civ 411

Case No A2/2009/1663[2011] EWCA Civ 411IN THE COURT OF APPEAL ( CIVIL DIVISION )ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL(HIS HONOUR JUDGE MCMULLEN QC)Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 22nd March 2011
Before
LORD JUSTICE PILLLORD JUSTICE HOOPERLORD JUSTICE MUNBY
Between
HendersonAppellantLondon Borough of Hackney and AnrRespondent
( DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court )
for The Appellant did not appear and was not represented.Ms Rebecca Tuck (instructed by the Learning Trust) appeared for Respondent
Judgment
[1]This is an appeal against a judgment of the Employment Appeal Tribunal HHJ McMullen QC presiding on 13 July 2009. The applicant, Ms C Henderson, seeks permission to appeal and this was to be what sometimes is described as a rolled up hearing, that is to say the Lord Justice who granted permission said that the appeal should follow immediately if permission is granted. Ms Tuck appears for the respondents.[2]The case was listed for not before 11.00. Before that time we had information from the usher and from Ms Tuck that Mr Owugah to whom I will refer in a little more detail was having breathing difficulties. Assistance was sought from a first aid person within the building and the NHS were involved. Paramedics came to court for Mr Owugah and decided that he should go to hospital.[3]The applicant, Ms Henderson, who is his friend, thought she should accompany him and that is understandable in the circumstances.[4]Mr Owugah is a lay person. He appeared for the applicant both before the employment tribunal in November 2008 and before the Employment Appeal Tribunal. In each case he made oral submissions and had prepared detailed written submissions. It is clear that he drafted the skeleton argument on which permission to appeal to this court was sought. The amended argument was submitted only yesterday which runs to over 100 paragraphs. The application for permission to appeal was refused on a consideration of the papers. It was renewed before Sedley LJ who referred the case to the full court in the manner I have described. As to Mr Owugah Sedley LJ stated this:
"It seems to me that as much as needs to be said for present purposes is set out in the skeleton argument that is now before me. It has troubled me sufficiently for me to take the course that I now propose to take ... I have indicated to Ms Henderson that she will need representation. Whether Mr Owugah, who has studied law, will be permitted to speak for her I do not know. She must make her own inquiries and applications in that regard. I simply record for those who may be concerned with it that this is a skeleton argument of high quality and that its author may well be of assistance to the court."
[5]In the light of that indication the present constitution of the court was minded to allow Mr Owugah to address the court on the applicant's behalf and thus he would assume the role of an advocate and not merely a McKenzie Friend. We also have in mind that he had been permitted to appear on two previous hearings to which I have referred.[6]We have considered the possibility of adjourning only until 2.00 to see whether Mr Owugah is by then in a position to proceed. We do not consider that a realistic possibility in the circumstances. Accordingly without objection from Ms Tuck we adjourn the case which will be listed as soon as possible and on the same basis as it was today.[7]If the present constitution can deal with it that would be desirable, we have all read the papers and were ready to proceed. In particular it was proposed that I should give a lead judgment so that if the present constitution does not survive as a constitution then every effort should be made to have the case listed before a constitution of which I am a member.[8]The case is adjourned on that basis. Costs of today will be the costs in the cause.

Order

Application adjourned

Cited in 1 later judgment