Shahrokni v Kingsway College & Ors [1994] UKEAT 435_94_0107

EAT

Shahrokni v Kingsway College & Ors

[1994] UKEAT 435_94_0107 · 1994-07-01

MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from the decision of the Chairman of the Industrial Tribunal on an interlocutory application made by Mr Shahrokni in proceedings complaining of racial discrimination started as long ago as the 29th October 1992.

The Respondents put in their Notices of Appearance in January 1993. The case is still at the preliminary stage of dealing with interlocutory applications for particulars and discovery. One of those applications for numerous particulars was heard by the Industrial Tribunal and found its way to this Tribunal last October when the decision of the Tribunal was given by Knox J. That decision seems to have prompted another round of interlocutory applications. The application that led to the decision under appeal took the form of lengthy letters dated the 28th January 1994.

The applications came before the Tribunal on the 25th March. On the 31st March 1994 a decision letter was written to Mr Shahrokni and to Eversheds, Solicitors representing the Respondents, about the hearing. The letter stated that Mr Shahrokni had requested particulars and documents and that the Respondents had objected to providing them. The particulars and documents requested related to the Science Unit at Kingsway College, where Mr Shahrokni had been employed as a part-time lecturer from February 1982 until September 1992, giving instruction in mathematics and later in computing. His basic complaint of racial discrimination is that after September 1992 he was not offered work which was available to be offered.

Mr Shahrokni never worked, so far as the Respondents are aware, or even sought work, in the Science Unit and yet the particulars and documents he requested related to that Unit. In the letter the Tribunal quoted from the decision of Knox J in this Tribunal, given on the 25th October 1993, where he stated:

"It seems to us that a fair balance will be struck by limiting the field of inquiry to what he [Mr Shahrokni] had been teaching because it seems to us in principle extremely unlikely that, in relation to subjects which he had not in fact been teaching the same points could be made by Mr Shahrokni as could be made in relation to the subjects that he had been teaching. It is one thing to say that he should have been engaged in teaching subjects that his past employers had employed him to teach. It is quite another thing to say that it should have been extended beyond the subjects which were in fact within his expertise but which he had never in fact taught. Therefore we make that Order with those limitation to it."

It appears that Mr Shahrokni based his application for the Further Particulars and documents on that passage of the earlier judgment. The Tribunal commented that it was clear from Knox J's judgment that there had been a debate whether or not the Science Unit should also be included and concluded that:

"While the Decision did not specifically relate to the Applications in respect of which the Applicant claimed today the Chairman believed that it had very strong persuasive authority which could be applied to the Applicant's current request. The Chairman accordingly declined to make an Order that the Respondent provide Particulars and Discovery in relation to matters with the Science Unit of Kingsway College."

That is the decision that Mr Shahrokni appeals. We have been shown subsequent correspondence between Mr Shahrokni and Eversheds in May and June of this year. That correspondence is not relevant to this appeal, since it post-dated the decision. The only matter before this Tribunal is whether the Industrial Tribunal's refusal to provide the Particulars relating to the Science Unit was in error of law.

The Notice of Appeal, which expressed Mr Shahrokni's satisfaction with the decision, was dated 12th May 1994. His arguments on this appeal are summarised in the Notice of Appeal which says this:

"The reason that the Further and Better Particulars and Discovery was refused by the Tribunal was due to:

1. the wrong assumption that the Science Unit was not in control of any work in Mathematics and Computing, which was based on the brochure produced by the Respondents.

2. the EAT's decision with respect to the case number 55275/92 during October 1993 hearing (

EAT/736/93

)."

(That is the case in which Knox J gave the judgment referred to.)

"The EAT made its decision on the basis of the information available to it at that time which were incomplete. Also, further information have emerged since the hearing.

The principal reason that the Science Unit was excluded by the EAT was also the assumption that Mathematics and Computing, the subjects that I had been teaching, were not controlled by the Science Unit.

However, through a letter to Eversheds dated 22nd April 1994 (copy enclosed), I have tried to clarify this issue and demonstrate that the Science Unit was in fact in control of some work in Mathematics and Computing. As yet, I have not received any replies.

Therefore, the information requested is essential to prove my case and without it my case will be severely prejudiced which would be in breach of natural justice. I consider that the material in question is both relevant to the issues of the case and necessary in order to receive a fair hearing."

He thus believes that this information will assist him to establish a positive case that his treatment was on racial grounds, and that was the reason for his failure to obtain teaching work and why he had been victimised due to his previously having done a "protected act".

I have read that in full because it is the best summary of the way in which Mr Shahrokni's case is put. We have considered these submissions in some detail and discussed them with Mr Shahrokni, because we were concerned, first, that we had not properly understood the ground of appeal and, secondly, we sympathised with the difficulties that Mr Shahrokni, has as a person not professionally trained in law or advocacy, in presenting an appeal which can only be entertained if there is a question of law. The difficulties of litigants "in person" having to argue legal points is fully appreciated. We urge litigants "in person" to seek legal advice which may be available nowadays from many quarters without charge for people who are unable to afford fees.

After consideration of these arguments we have reached the conclusion that this appeal must be dismissed because it does not raise any questions of law. The legal position on Particulars is this: the Tribunal has a discretion to order Particulars of grounds on which a party relies and of any facts and contentions relevant to those grounds. That discretion is conferred by Rule 4(1) of the current Industrial Tribunal Rules. It is for the tribunal to decide, in accordance with settled legal practice and principles of Particulars, whether it should or should not exercise its discretion to order them. It should bear in mind, as we believe this Tribunal has done, that there is a clear distinction in law between Particulars of grounds or allegations and evidence. Particulars fulfil the function of dispelling vagueness and lack of clarity in the statement of a person's grounds of complaint or defence. Each party is entitled to know the essential way in which the case against him is put. Particulars are concerned with allegations of fact. They are not concerned with the means by which the allegations are to be proved. They are certainly not to be used in order to secure decisions on an interlocutory basis as to disputed questions of fact. That comment is particularly relevant to the present case. There appears, from the statements made by Mr Shahrokni in his Notice of Appeal and in correspondence subsequent to the Industrial Tribunal's decision, to be a factual dispute about the control of mathematics and computing instruction in the Science Department. The Industrial Tribunal is not able to entertain a dispute and make a decision on such a matter on an interlocutory application for Particulars and Discovery. We are even less able to make any ruling or decision on an appeal from a decision of the Industrial Tribunal.

If the dispute about the Science Unit and the control of teaching of mathematics and computing is relevant to Mr Shahrokni's complaint, that is a matter that he will be entitled to lay before the Industrial Tribunal at the full hearing. He can bring forward his witnesses and make his arguments. When the Respondents bring forward their witnesses he will be able to cross examine them on all relevant disputed questions of fact. It will be for the Industrial Tribunal at the full hearing to make a decision as to what is relevant to the complaints made by Mr Shahroki and what is not relevant. It appears to us that what Mr Shahrokni is trying to do by this application is to lay the basis of a case dependent on the resolution of a dispute of fact which can only be achieved at the full hearing.

We are unable to detect in the letter of the decision of the 31st March any error of law in the way in which the Tribunal exercised its discretion. Mr Shahrokni's arguments had this theme running through them, that there must have been some error of law because there was an inconsistency between the decision of this Tribunal last October in ordering certain particulars and the decision of the Industrial Tribunal in March 1994 refusing to order what he described as similar particulars in relation to the Science Unit.

The fallacy of this argument is that there is a dispute between the parties as to whether the teaching of mathematics and computing taught in courses managed by the Science Unit is, or is not, under the same control or is relevantly similar to teaching in the Department in which Mr Shahrokni worked when he was a part-time lecturer at Kingsway College.

In those circumstance we are unable to find any inconsistency which shows that there was an error of law on the part of the Tribunal in the decision notified on the 31st March. As we can not find an error of law we must dismiss this appeal. In dismissing it we repeat comments made during the course of the hearing that Mr Shahrokni should give serious consideration to seeking professional legal advice and representation for the purpose of ensuring that his case is presented effectively at the full hearing. If he does not secure representation, he may find that there are difficulties in his way as an unrepresented person in communicating the full force of his complaints at the hearing and in effective cross examination of any witnesses produced by the Respondents. Presenting a case and testing the other side's case require professional skills. It presents special difficulties for this Tribunal and for the Industrial Tribunal if a person is not represented.

With those remarks we dismiss the appeal.

JUDGMENT ON COSTS

Following our decision to dismiss the appeal an application has been made on behalf of the Respondents under Rule 34 of the Employment Appeal Tribunal's 1993 for an Order that Mr Shahrokni pays the costs of this appeal estimated at £1,700 plus VAT. The basis of the application is that this Tribunal has a power to Order costs in cases where it appears that the proceedings were unnecessary, improper, vexatious or unreasonable. In a case falling within those categories the Tribunal may Order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings.

Mr Conlin's submission was concisely stated in this way. These proceeding were misconceived and therefore were unnecessary. Costs have been wasted by reason of an appeal which failed and never stood a reasonable prospect of succeeding.

We have considered this application which is resisted by Mr Shahrokni, principally on the same ground that he argued the appeal, that is that he thought that in pursuing this matter he was acting consistently with the way in which the appeal was decided last October.

We sympathise with the position of the Respondents' that the proceedings are unnecessary, but we have reached the conclusion that this is not a case for departing from the usual practice of this Tribunal not to Order costs against an unsuccessful appellant. It is a matter of concern that costs of this order are being incurred in relation to unsuccessful appeals, but we feel unable to conclude that this is a case in which it is proper to Order the unsuccessful Appellant to pay those costs. We hope that Mr Shahrokni will bear in mind, in any future interlocutory applications that he considers making, that there is a risk that unnecessary proceedings may result in him being ordered to pay costs. With that warning we make no Order on the application.