Semoff v Liverpool School Of Tropical Medicine [1993] UKEAT 721_92_1105

EAT
Semoff v Liverpool School Of Tropical Medicine
[1993] UKEAT 721_92_1105 · 1993-05-11
MR JUSTICE WOOD (PRESIDENT): Mr Semoff appeals against a decision of Mr L A Brown, the Chairman sitting in Liverpool, that he be refused an extension of time for his application for review. It was refused on the grounds that it had no reasonable prospect of success.This matter has a long history. The basis of the principle upon which the learned Chairman no doubt decided the case was that litigation really must come to an end. There must be an end to litigation. The point and the principle raised by Mr Semoff is that's all very well but that must be balanced against the merits of the application to extend time and that when one looks at the merits of the arguments which he is putting forward in this case, they outweigh the principle that there should be an end to this litigation. Therefore although the application for review is over four years out of time, nevertheless, in the exercise of his discretion, and exercising it judicially, the learned Chairman should have extended time and granted a review, which in effect would have been a re-hearing.The Originating Application was dated 9th July 1987. In it Mr Semoff alleged racial discrimination by way of victimisation contrary to the Race Relations Act 1976 and named as the Respondent the Liverpool School of Tropical Medicine and Professor MacDonald, who was the Dean. That issue was heard over some six days, the Tribunal gave its decision which was promulgated on the 27th January 1988. It decided against Mr Semoff. He appealed to this Tribunal. The hearing before this Tribunal took place in the early part of 1989, we gave a judgment which was dated 26th April 1989, dismissing his appeal. The application for the review was made on the 3rd July 1992.The basis of the application, namely the merits of the points which Mr Semoff wants to raise, are in essence threefold. He has put the matter before us succinctly, we are grateful to him for so doing. He rounded off his submissions by indicating that his real anxiety was his desire to clear his name, because without clearing his name, he was finding it impossible to obtain employment and he wanted an opportunity for justice. The first and the main matter which he raises is that the reason which is contained in paragraph 10 of the original decision was incapable of being established on the evidence and was the result of perjured evidence. The Tribunal in that case said:
"We are satisfied that the applicant had no wish at all to apply for the advertised vacancy and was forced to so by outside pressures which were brought to bear upon him for the purposes of trying to cause maximum embarrassment to the Dean and the school."
This was, of course, in connection with a vacancy which had occurred and which was the subject of investigation during the hearing before the Industrial Tribunal.The matter is dealt with earlier in their decision in sub-paragraphs 14 to 18 of the findings of fact which are in the main paragraph 4 and these findings appear on page 3 of the actual decision. It is worth just reading those findings of fact:
"On 18 August 1986 an advertisement prepared by Professor Howell appeared in the local press for a senior research technician grade (v) for the post of senior technician in the EMU.
The deadline for applying for the position was 8 September 1986 and applications had to contain the names of two referees.The applicant failed to apply before the deadline as did another person, and the latter application was not accepted.On 15 September 1986 the applicant asked the Dean if he could apply for the position and was told he could.On 23 September 1986 the applicant went and saw Professor Howell and told him he was undecided whether to apply because he was satisfied that 2 applicants for the post whom he had seen were quite capable of running the unit and further that he had no desire to apply for the position but was under pressure from the local community."That was the precursor of the finding in paragraph 10 to which we have already referred.Mr Semoff has told us that in fact there are now a number of people who will say that that is totally untrue. Senior academics, relations, individuals from the various members of the community who will say that that is all quite untrue and that he himself had been through a wretched time, bankruptcy; divorce; unemployment; the dole, and I am told, two weeks hunger strike in a prison, and he would not be seeking to clear his name if that matter was not true.Before us in the Spring of 1989 Mr Semoff was represented by Counsel and we mention in our judgment that his learned Counsel had presented the case with ability and proper persistence, we were grateful to him. We also examined on that occasion some 250 pages of documentation. We had the notes of evidence, and on page 1H of that judgment, we say:
"The only evidence which we can find of outside pressure is referred to by the Applicant in the notes of his evidence. He had involved himself in local politics and told the Tribunal that people outside the school were urging him to apply for the appointment and referred to `friends and colleagues in the Labour Party, Community Relations, Anti-Racist Worker Collective and CND."
It seems to us today, therefore, that in fact the finding of the Industrial Tribunal, that he was not anxious to apply for the position, is contained in the earlier findings of fact, about which there is no submission today. But also, that it was supported by evidence out of the mouth of Mr Semoff himself. We quite appreciate that he feels very, very strongly that there has been an injustice. He has clearly been anxious to examine the matter time and again over the years and has come back, asking in effect, for the matter to be re-opened. That is the first ground on which he says that the merits demand that it should be re-opened. Speaking for ourselves, having re-read these papers and discussed it with care, it seems to us that in fact, that finding by the Industrial Tribunal was based upon evidence, his own evidence, and that was the justification for it, even if now the matter was re-opened. He would have to change his evidence on that issue. The Tribunal were substantially following what he had told them.The second point which Mr Semoff raises is what he termed "reason (4)". Reason (4) is, in fact, the sub-paragraph (4) of that same main paragraph 4 of the decision of the Industrial Tribunal. The issue here is that Mr Semoff suggests that the Industrial Tribunal were wrong in saying that he, the Applicant, had raised a matter at a meeting. Sub-paragraph (4), (5) and (6) read:
"At a staff academic meeting held on or about 18 June 1986 at which the Dean was present the applicant under the heading of any other business brought to the attention of the committee the existence of 2 separate housing lists in the possession of the respondents, one being a list of landlords who would take students of any nationality and the other a list of those who were prepared to take European students only. He said those lists might contravene the Race Relations Act.
Mrs Newall, the school Administrator was concerned at the manner in which the question of the lists were raised and spoke to the applicant about it, he apologised for so raising it and said he did not know whether or not to withdraw it and she told him not to do so.Subsequently Mrs Newall learnt that the lists had been given to the Commission for Racial Equality by a member of the school staff and she told the Dean that she was going to speak to the applicant about it; when she told the applicant of what she had learnt he denied giving the lists to anybody and she accepted his denial and so did the Dean when she reported to him the result of her conversation."It seems to us quite clear, reading those three paragraphs, that it must have been the Applicant who raised the matter because sub-paragraphs (5) and (6) simply could not have been found if it was not he and he would have denied it to Mrs Newall. In any event it seems to us that it may not be an issue of any great moment but, with respect to Mr Semoff, reading that, he only took the point on sub-paragraph (4) and we feel it must have been the Applicant who raised the matter. We can see no great impropriety about that, but it is clearly a matter which has caused him anxiety. We see no particular point in what is called "reason (4)".However, the Committee meeting to which, I think he may have been referring, was that mentioned in sub-paragraph (26). Again, in order to understand the matter it is as well we should read sub-paragraph (24), (25) and (26), and this is the third main point that Mr Semoff makes as we have understood it. In sub-paragraph (24) it reads:
"On 9 October the applicant and others were interviewed by a Committee and the Dean for the advertised post at the EMU.
The Committee was not an appointing Committee, the purpose was to advise the Dean on the various applicants for the job but the appointment of the successful applicant was the Dean's sole responsibility.At the conclusion of that meeting there was no majority for any one applicant. When the meeting was concluded the Dean had still not made his mind up because the views expressed around the table had been most diverse. He asked therefore if they would give him their views in writing as it might help."Mr Semoff's point, as we have understood him, is that there was a majority. That point was raised before this Tribunal at the hearing of the appeal. On page 7 of our judgment in this Tribunal we say that:
"Mr Gilmore in his submissions relied particularly upon a number of paragraphs in the reasons and these we set out in full:"
and then we set out, beginning at sub-paragraph (24) of paragraph 4, and going on from there. Then the reasoning of the Tribunal is then also referred to in paragraph 7, 8 and 9.Mr Gilmore's submissions appear on page 9 of our judgment and are set out thus between D and G:
"First, the evidence of the witnesses and the documents proved that at the end of the meeting there was a majority in favour of Dr Semoff; secondly, the Tribunal found as a fact that the Dean would have appointed the Applicant in he had had the impression that the majority were in favour; thirdly, there was a majority for the Applicant; the Dean's decision to appoint Mr Young was unexplained and unjustified, and therefore the Tribunal should have examined why the Dean did not appoint the applicant; fourthly, the Tribunal did not make that investigation because it had found there was no majority and therefore no question of the Dean acting against the majority view; fifthly, that the wrong finding of fact seriously tainted the remainder of the decision and in particular the conclusions in paragraph 8."
This Tribunal clearly examined all the documentation and the evidence and we deal with those submissions on page 10 of our judgment at B where we say:
"It is obviously necessary in order to substantiate this proposition that the word `majority' should be used as a `bare majority'. In order to see whether that is the correct understanding we have looked to the evidence and the background to the problem. In the first place there was no question of a vote being taken at this Committee, and no vote was taken; there were merely expressions of opinion. Secondly, the weight to be given to the view of any individual member would no doubt depend upon the reasoning behind it, and any preconceived opinion held by that person - for instance that despite what anyone else might say, only an academic was suitable for election to the post. Thirdly, it is important to remember that the Dean was consulting others outside the Committee, and would only be influenced by the Committee and not bound by it, otherwise it would be useless for him to consult others. Fourthly, Professor Howells was not present at the Committee as he was abroad, although it had been intended that he should be.
Against this background it seems to us more likely that the Dean would be looking for unanimity or a very clear majority before allowing the views of the committee to dominate his assessment of what was best. In looking to the evidence itself the words recorded as the evidence of the Dean refer to `a clear majority' on some two occasions and this must obviously be the meaning which the Tribunal intended their words to have."Then we go to the evidence, and find indeed, that there was no majority.Thus, looking at the three major points upon which Dr Semoff relies, as being the merits which would demolish the legal principle that there should be an end to litigation, the first reason 10 seems to be based upon his own evidence. Reason 4, we think, may have been some misunderstanding. Reason 26, which is the majority at the Committee, was dealt with on the appeal and it was decided, despite the able submissions of Mr Gilmore, to be without foundation. Those are the points and the merits. We have read all the documentation, balancing that against the fact that there was this long period of time; that there was a six day hearing in front of the Industrial Tribunal and we, clearly, had taken a great deal of written material here in considering this matter, it seems to us that although we quite understand that Dr Semoff may be very distressed at the result of this whole litigation, yet balancing that against the principle involved, can we say that the learned Chairman Mr Brown was wrong when he said this in paragraph 3 of his Reasons of July 1992:
"More than 4 years have passed since the Decision of the Industrial Tribunal and 3 years have passed since the Decision of the Employment Appeal Tribunal and I take the view that the interests of justice do not require the time limits to be extended to enable the application to be heard."
Dr Semoff's real criticism is that the reasoning behind that and the reasoning behind the decision is not sufficiently explicit in that decision of the learned Chairman. He has argued his case before us, we have looked at the various points and we hope we have done him the credit and the justice of looking at each of those points, as he put them to us and trying to assess the weight of those points in any question of review. Looking at it in that way and doing the best we can in the circumstances, we can not find that the exercise of the discretion by the learned Chairman, was so outside the bounds, or was wrong in principle such as to warrant interference by ourselves. It follows therefore that this preliminary hearing by way of the appeal must be dismissed.Directions:Dr Semoff: Sir, does that mean you will be moving charges of perjury against me on the basis of my affidavit.

Justice Wood:

We do not intend to do anything at all. But the existence on the file of this legal aid certificate - I think it is a matter for the legal aid authorities. We shall direct that the certificate is sent to them so that we can understand exactly what it is they intend, whatever it is, we ought to sort it out, so we will direct that that is sent to the legal aid authorities.