Trent Regional Health Authority v Guirguis [1991] UKEAT 647_90_0412

EAT

Trent Regional Health Authority v Guirguis

[1991] UKEAT 647_90_0412 · 1991-12-04

MR JUSTICE KNOX : The Trent Regional Health Authority appeals from part of a unanimous decision of the Sheffield Industrial Tribunal which sat on 20 July 1990 and decided first of all that time should be extended to validate the application for a review made by Dr Guirguis, the Respondent before us, of a Decision of the Industrial Tribunal of 25 April 1988. Secondly, that that last mentioned Decision should be reviewed and set aside and thirdly, that Dr Guirguis' complaint of unfair dismissal should be listed in due course. It is against the first two of those Decisions that the Appeal is launched.

The background chronology is somewhat complex. In outline it is as follows. Dr Guirguis was employed by the "Authority" as I will call it for the sake of brevity, for some considerable period of time from 28 October 1978 until 11 November 1985 when he was dismissed on grounds of alleged deceit and therefore gross misconduct.

He presented an Originating Application claiming unfair dismissal within the permitted three month period although towards the end of it, in February 1986. That was stayed for a very considerable length of time because there was on foot, what has been called in argument a para 190 proceeding whereby three other doctors were litigating the question with the Secretary of State whether or not he (the Secretary of State) had power to deal with Appeals in similar but not identical circumstances to those of Dr Guirguis. It is not necessary to go into the detail of that, the relevance of it for present purposes is that it was commonly and more especially by Dr Guirguis and those advising him thought, that the determination of the issue as between the Secretary of State and the three other doctors would probably determine Dr Guirguis' complaint or the Secretary of State's ability to deal with Dr Guirguis' complaint as well.

In fact that expectation which was, as I say commonly shared and in particular by the Authority, was disappointed in that there was in February 1988 a settlement between the Secretary of State and the three doctors which did not produce a solution of Dr Guirguis' case and that left him in a position in which he thought it right to start his own judicial review proceedings in March 1988. Anticipating for a moment he got leave to move for judicial review in May of that year, failed at first instance in his application for judicial review in November of that year and before the Court of Appeal his Appeal was dismissed on 12 October 1989, the Order being passed and entered on 24 October of that year.

Going back in time to Spring 1988, the Industrial Tribunal, which had stayed the Originating Application that had been presented in February 1986, was taking steps with the concurrence and support of the Authority to activate the Originating Application on the question of unfair dismissal. The Industrial Tribunal received two letters dated 14 and 21 April from Dr Guirguis requesting an adjournment in what can perhaps be described as increasingly strident tones. In fact those requests were not given effect to but the Chairman decided that there should be a hearing on 27 April at which it would be open to Dr Guirguis to apply for a further adjournment but that the parties were in the meanwhile to prepare for the hearing.

It is in that context that one finds the critical letter that was written by Dr Guirguis in person, he, having at that point of time no longer legal advisers who assisted him in the preparation of that letter or indeed in the period during which he was writing earlier letters and making telephone calls to secure an adjournment. The letter of 23 April was set out in full in the Industrial Tribunal's Decision. It will suffice for our purposes to read only part of it. It includes the following:

"I refer to your letter of 22nd. April 88"

Pausing there for a moment that was the letter that fixed the 27th finally for the further Hearing notwithstanding Dr Guirguis' representations. Going on with the letter:

"I have explained in my previous letters and my previous solicitors that unless the Secretary of State hears my appeal, I am not dismissed."

Pausing there again for a moment, that was based largely if not entirely on letters that were before the Industrial Tribunal that had been written by Bindman & Partners, Solicitors who had previously been advising Dr Guirguis, in one of which - there were three - it was stated that until the Secretary of State determined the para 190 appeals the employment of Dr Guirguis continued on foot and whether or not that is accurate is neither here nor there. The proposition was stated in his solicitor's letters and it obviously was something which the Industrial Tribunal found, he took to heart.

Continuing with the letter of 23 April Dr Guirguis went on to report what is common ground had happened, namely that on 15 February the Secretary of State had asserted that he had no jurisdiction in relation to Dr Guirguis' case - that was in the context of the settlement with the three other doctors - and he said that he had applied for leave for judicial review. He mentioned the fact that he was making substantial claims in his proceedings against both the Secretary of State and the Authority. The total figure he mentioned was £50,000 and that is a factor which is relied upon in support of the argument that has been adduced on behalf of the Authority that what Dr Guirguis was doing was effectively choosing the High Court as a potentially more lucrative avenue for him to pursue his rights than the unfair dismissal claim in the Industrial Tribunal which foreseeably was never going to produce anything remotely approaching £50,000.

Finally, there are these few paragraphs in Dr Guirguis' letter of 23 April 1988.

"The application to this Honourable Tribunal is made by the Medical Protection Society Solicitors as a procaution (sic). If you agree to defer the Hearing until I exhaust my appeal to the Secretary of State I will be grateful.

If you donot then with all respect, I withdraw this application. immediatly."

On receipt of that letter the Chairman of the Industrial Tribunal on 25 April 1988 made an Order that the application by Dr Guirguis was dismissed on withdrawal and it is with regard to that decision on 25 April 1988 that the application for review was based.

There followed after 25 April a long period of time before Dr Guirguis eventually made a formal application for review. That in fact was made by a letter dated and received by the Industrial Tribunal on 23 May 1990. In the interval there were three discernible phases. The first phase stretched from 25 April 1988 until 12 October 1989. Those dates are relevant because the first one is the date of the Order of dismissing his Originating Application. The second is the date when the Court of Appeal dismissed the Appeal against the decision rejecting his application for judicial review against the Secretary of State. Once that was done the argument that I have mentioned was advanced by his Solicitors, namely that his employment continued until the Secretary of State had dealt with his application under para 190 came to an end and it was no longer a tenable proposition after 12 October 1989 that Dr Guirguis' employment was still on foot.

That introduced the second phase which lasted from that date, 12 October 1989 to 18 January 1990 when Dr Guirguis presented a second Originating Application seeking relief in respect of unfair dismissal. That was a procedural misapprehension as is accepted on both sides because in relation to the third and last period which runs from that date, 18 January 1990 to the application for review of 23 May 1990, it was very properly not contended by the Authority that that period, the third period, should be held against Dr Guirguis.

This was on the footing that he had plainly misapprehended the appropriate relief. He had thought wrongly, that what he needed to do was to present a second Originating Application whereas his proper course was to apply, as ultimately he did in May 1990, for a review of the dismissal of his application in April 1988. There is no Appeal before us in relation to that third and last period. The matters that were argued before us were concerned with the first two periods.

The relevant Rules are to be found in the Industrial Tribunal (Rules of Procedure) Regulations.

(e) provides:

"A tribunal shall have power to review and to revoke or vary by certificate under the chairman's hand any decision on the grounds that

(and I pass over (a) to (d)) (e)the interests of justice require such a review."

It is to be noted that the preceding paragraphs were very largely taken up with matters of procedure such as for example that notice of proceedings was not received by the party in question. Paragraph 2 of Rule 10 reads:

"An application for the purposes of paragraph (1) of this Rule may be made at the hearing. If the application is not made at the hearing, such application shall be made to the Secretary of the Tribunals at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full."

As I mentioned the Decision of 25 April 1988 was in fact sent to the parties the very same day and so the 14 days ran from 25 April 1988.

The power to extend time is in Rule 12(2)(a) which reads:

"A tribunal may, if it thinks fit, (a)extend the time appointed by or under these Rules for doing any act notwithstanding that the time appointed may have expired;"

That runs in parallel with Rule 13(1) that provides:

"An application to a tribunal for an extension of the time appointed by these Rules for doing any act may be made by a party either before or after the expiration of any time so appointed."

The Industrial Tribunal acted in this case in deciding to extend time for the application for a review and in granting the review, by the full Tribunal and not by the Chairman alone as is more commonly done in applications for a review. This is a reflection partly of the difficulty that this case plainly caused the Industrial Tribunal and partly of the care with which the matter was dealt with by them. The decision appealed from runs to twentythree pages and contains a minute account both of the events and of the arguments and evidence upon which the Industrial Tribunal based its decision.

The Notice of Appeal before us is divided into two main categories of point. The first category of points is prefaced by this phrase:

"The grounds on which the Appeal is sought are as follows:

(1)The Industrial Tribunal erred in law in extending the time to validate the application for a review by failing, whether properly or at all, to have regard to the following factors:"

It was submitted to us by Mr McMullen on behalf of Dr Guirguis that there are two different categories there. A question of whether an Industrial Tribunal failed properly to have regard to factors is essentially a question of whether they put the right weight on a factor and that is a matter for judgment and does not, on the face of it, raise a question of law. The question whether they had any regard, which is covered by the expression "by failing at all to have regard to the following factors" is capable of raising a matter of law and it is therefore necessary to look at the several matters that are alleged in the Notice of Appeal.

The first three can be fairly summarily dealt with in that we are satisfied that all three of these matters were in fact adverted to in the course of the Industrial Tribunal's exhaustive Decision. The three matters are shortly stated as follows:

First that in normal circumstances the time for a review is 14 days. Secondly that in this case the application was not made until 2 years after the decision to be reviewed and thirdly that the Respondent knew that he might wish to revive his unfair dismissal application once the Court of Appeal rejected his Appeal on 12 October 1989 but he neglected, until 18 January 1990 which is over 3 months after the Court of Appeal's decision, to present his second Originating Application. Those are all matters which we are quite satisfied the Industrial Tribunal(a) mentioned specifically in the course of their Decision and

(b) took into account.

The other three matters that are mentioned in that part of the Notice of Appeal are on a slightly different footing. The first one reads as follows:

"That by reason of (c) above (that is the non-presentation of Originating Application for just over three months after the Court of Appeal's Decision)

the Respondent would not have been entitled to pursue this claim for unfair dismissal had it been a fresh application; he cannot be in a better position by reason of the fact that the appropriate application for him to lodge was for a review of the initial determination;"

That seems to us to be a proposition of law rather than a fact so far as it goes, but it is in our view, something which does not mirror any error that was committed by the Industrial Tribunal. We say that because it was expressly stated and accepted as being correct by the Industrial Tribunal that a different test has to be applied on the one hand for deciding whether or not time should be extended in respect of the late Originating Application claiming unfair dismissal where under the Employment Protection (Consolidation) Act 1978 s.67(2) what has to be shown is that it was not reasonably practicable or, as it has been explained in the Court of Appeal, feasible for the Originating Application to be presented within the 3 months permitted. On the other hand here, under the Rules which I have read and need not repeat, the discretion that is vested in the Tribunal is one which is at large and is not channelled in the way that an Industrial Tribunal's discretion is in relation to late Originating Applications for unfair dismissal. It would be wrong for an Industrial Tribunal to be blinkered in its exercise of its discretion under the combination of Rules 10(1)(e) and 12(2)(a) by the specific time limit provisions which are contained in the relevant section of the Employment Protection (Consolidation) Act 1978.

The next ground in the Notice of Appeal is that the decision of the Industrial Tribunal against which a review was sought, was taken on withdrawal of the application by the Respondent himself "because he thought that an alternative procedure would be more valuable to him". We have heard a good deal of argument though much less no doubt than the Industrial Tribunal heard, on what was the exact motivation and reason for Dr Guirguis to write the letter of 23 April which he did write. The Industrial Tribunal certainly did not ignore this question. It examined it at quite considerable length and we are quite satisfied that there was not a failure to have regard to that issue.

Finally, on the question of failure to take matters into account, it is claimed in the last of these grounds that the Respondent had been receiving professional, legal advice. That has been clarified in the course of argument as being indeed intended to be in the pluperfect, that is to say that it related to the period of time, the 23 April 1988, when in the past Dr Guirguis had indeed been receiving professional legal advice. It is not disputed before us but that at that particular point of time and in respect of that particular matter, he did not receive professional legal advice so that when the Industrial Tribunal recorded that fact it was having regard to an established and now not disputed fact.

That brings me to the second category in the Notice of Appeal which is really what this Appeal was fundamentally about, namely that this Decision of the Industrial Tribunal was a perverse one. It is put formally in this way:

"In the premises.. the said decision was one which no reasonable Tribunal, properly directing itself in law, could reach."

Here again the matter is put in different ways in relation to different issues. First of all there obviously is the very important question of "why did Dr Guirguis withdraw his application?". What the Industrial Tribunal said about that was first of all that he was in a state of panic and near desperation when he wrote that letter of 23 April 1988. They based that conclusion on a variety of factors which they enumerated. First of all the way he behaved in the witness box. He gave evidence before the Industrial Tribunal. Secondly, that that was what he said, and they accepted his evidence and he is of course a gentleman of medical qualifications and thirdly, that the Industrial Tribunal came to the conclusion looking at the letters that he wrote, that he was not making a rational choice between the financial benefits of one jurisdiction, the High Court, as against another. They analysed it as showing an increasingly desperate feeling that he could not go on with the Tribunal and the High Court at the same time.

Again, they found a little later in para 15 of their Decision:

"The way in that statement "I withdraw this application" was clearly intended, it now seems to us in the light of the evidence we heard, was as a means of underpinning the application for an adjournment rather than being an independent and considered decision standing on its own. He was referring to it really as a final device to try to get his case adjourned."

and that particular expression of "a device" was something which again found its way into the later passages of the Industrial Tribunal's Decision notably in para 32 they say:

"when.....he at the very end said that he withdrew the application he was referring to it really as a final device to try to get his case adjourned."

"Device" is an unfortunate word to use in that context. It suggests a machiavellian manoeuvre which is of course wholly inconsistent with the Industrial Tribunal's finding that it was something that was done in a moment of panic. We therefore accept the verbal criticism that a device is something which, in the normally accepted sense of a word of a stratagem or trick, is something which should not be regarded favourably when considerations such as the general exercise of the discretion to grant a review are being exercised and considered. But we are satisfied that that was a verbal infelicity rather than a considered description of the nature of what Dr Guirguis was doing.

At the end of the day the main submission on this score was that the evidence that was before the Industrial Tribunal did not measure up to what it found, namely panic and that is a matter which in our view is plainly a matter of judgment and not one with which this Tribunal should interfere. There being some evidence on the issue, the question how much weight it carries and whether it should be believed is essentially a matter for an Industrial Tribunal.

The other main issue "why did Dr Guirguis delay as long as he did?" - notably during the three months and some six days after the Court of Appeal's Decision was given - is more serious and was recognised by the Industrial Tribunal to be more serious. That was criticised pungently by Mr Elias on the basis that the explanation for the writing of the letter of 23 April, namely "panic" is no long term explanation in any reasonable sense and if that was the only explanation we would see very great force in that submission.

But it seems to us that there are two separate mental processes to be considered here. There is first of all "what impelled Dr Guirguis to write the letter that he did write on 23 April 1988?" and that was identified by the Industrial Tribunal as "the panic stricken" action. Secondly and as we see it separately, there is the intellectual justification for the non-pursuit of both the Industrial Tribunal and the High Court proceedings which were on foot. The latter were not limited to judicial review but there were also proceedings for wrongful dismissal and indeed an application in respect of racial discrimination against the Secretary of State which did not succeed and is irrelevant I think for our purposes and that mental state of affairs was what the Industrial Tribunal in our view was regarding as the justification for the long period of some eighteen months, while the proceedings for a judicial review were still winding their way through the Queen's Bench Division and the Court of Appeal.

It goes back to the letter written by Bindman and Partners and the view of law there expressed that until the Secretary of State's status and decision under paragraph 190 was disposed of it was at least arguable that the employment of Dr Guirguis continued on foot. One can see why not only an educated layman but many a lawyer might see that there was a difficulty in simultaneously prosecuting proceedings in the High Court in which it was sought to establish the continued existence of Dr Guirguis' employment and at the same time an Originating Application in the Industrial Tribunal which is founded on the proposition that he had been unfairly dismissed.

There are of course ways which those of us who practise in these courts and tribunals to a greater or lesser extent are familiar with of surmounting this sort of difficulty. A classic way which was adopted at the outset of this long and complex story was that of staying the Industrial Tribunal proceedings until the other proceedings are brought to a conclusion. That is by no means the only way of doing it. It is not necessary for us to elaborate the various possibilities.

We are satisfied that the approach of the Industrial Tribunal in regarding the difficulty that Dr Guirguis felt as providing an explanation for the delay not only while the judicial review proceedings were on foot but also during the three months and a few days thereafter until the second Originating Application was presented, is not so faulty as to justify our placing it in that fortunately rare category of case, where this Tribunal can say that the decision of the Industrial Tribunal was so erroneous as to be categorised as perverse. The Court of Appeal has on many occasions pointed to the desirability of there being the clearest possible evidence that the view expressed below on an exercise of discretion is hopelessly untenable, absent of course any error of law, before this Tribunal should interfere.

We are not satisfied that there is any such grave defect in the reasoning of the Industrial Tribunal in these matters.

There are two other points that we should deal with. First of all it was said that costs had been incurred by the Authority in relation to the abortive hearing on 27 April 1988 and that of course is certainly true. It is not, it was pointed out, something which even in this lengthy decision of the Industrial Tribunal is specifically referred to in their Decision. Equally, although it did form part of the answer that the solicitors for the Authority put in in a letter dated 8 February 1990 to the second Originating Application, so that it was before the Industrial Tribunal we assume, there is nothing to show that it was relied upon in argument before the Industrial Tribunal. What is perhaps more significant is that there is a specific finding by the Industrial Tribunal that no specific prejudice was established before it in relation to the determination of the unfair dismissal claim. True it is that that was primarily if not exclusively looking at the extent to which additional costs involved in the continuation of the litigation would be incurred by the Authority as a highly relevant factor. But we are not satisfied that the issue with regard to the costs which were abortively incurred in relation to the hearing that never happened on 27 April 1988 is an indication of a sufficient flaw in the Industrial Tribunal's Decision to warrant our interference.

Finally, there was some argument before us on the question how far it was legitimate to have regard to the relatively short period of delay between the decision of the Court of Appeal on 12 October 1989 and the presentation of the second Originating Application in the context of the two year overall delay that occurred between the making of the Order for Dismissal on 25 April 1988 and the application for a review in May 1990.

In our judgment it is legitimate for the Tribunal to have regard to the overall picture but it would not be legitimate for an excessively long period of relevant delay to be justified by an earlier long period of justified delay. That we accept. But we do not see that the Industrial Tribunal regarded the delay that they regarded as "the most serious" that is to say between the Court of Appeal Decision and the second Originating Application as being justified on that basis. They took into account the two year period as they were, as we see it, entitled to do. But they did not in our view regard the two year period as rendering tolerable what otherwise should have been regarded as "intolerable". And on that basis too, we see no sufficient ground for interfering with their decision. The Appeal will be dismissed.