Lindsay v Cumbria County Council [1994] UKEAT 522_94_3006

EAT
Lindsay v Cumbria County Council
[1994] UKEAT 522_94_3006 · 1994-06-30
MR JUSTICE MUMMERY: (PRESIDENT) This is an appeal against a decision of the Industrial Tribunal held at Carlisle on the 18 April 1994. The Appellant is the Applicant in proceedings against the Cumbria County Council and others complaining of discrimination on the ground of sex. The order made by the Tribunal was an interlocutory order containing directions for the conduct of Mr Lindsay's proceedings. The Tribunal made these orders. First, that the Council supply Mr Lindsay with a copy of applications of all those selected for interviews for the job for which he had unsuccessfully applied. That was a job as a cleaner in charge at Eaglesfield Paddle School. He had not been shortlisted for the job and he was advised by letter of the 19 July 1993 that his application had not been successful.The Tribunal therefore ordered that the applications of all those selected for interviews should be supplied to Mr Lindsay, but not the names and addresses of the applicants. Mr Lindsay makes no complaint about that direction. He does complain about the second direction made by the Tribunal refusing his application for copies of various documents relating to a Miss K Thompson: her contract of employment, probationary reports, attendance record, and sickness absence records.As to paragraph 3 of the order he has no complaint, save that the Council has not complied completely with the order for the supply of copies of other documents consisting of a probationary report for him made out by a Mrs A Jarman, the Domestic Bursar at Higham Hall. That was the subject of an earlier complaint made by Mr Lindsay against the Council, which had been settled by the parties in an agreement. Mr Lindsay signed on the 29 June and the Council signed on the 14 July 1993.On that point we comment that, if there has been non compliance with the order, that is a matter to be dealt with by the Industrial Tribunal, not this Tribunal which can only entertain appeals on questions of law. The question whether the order has been complied with is not a question of law.There is no complaint about the next two directions for exchange of a list of documents and for an estimated time of hearing of 3 days. There is, however, a complaint by Mr Lindsay about the two last directions, confusingly contained in two paragraphs each numbered 6. In the first paragraph the Tribunal refused to grant Mr Lindsay leave to amend his application to add a further claim of discrimination arising from a later application he made for another position with the Council, to be a cleaner in charge at a school called Lorton School. He had not been shortlisted.The Tribunal said that, if he commenced further proceedings, consideration would be given to consolidating the application relating to the job application for Eaglesfield Paddle School and the Lorton School job, although that would depend on the nature of the claim and of the defence. Mr Lindsay informed us and Mr Brown, on behalf of the Council, confirmed that Mr Lindsay has in fact started another set of proceedings arising out of his unsuccessful application for Lorton School. Mr Brown made it clear that the Council has no opposition to consolidation.The final direction of which complaint is made is that the Tribunal made it clear that this case was not the hearing of the previous application which had been settled. If he wasted unnecessary time at the hearing, by calling evidence concerning the merits of such application, he ran the risk of having a costs order made against him. That is not strictly a direction. It is a strong indication to Mr Lindsay as to the Tribunal's view that it is not relevant to resurrect the earlier complaint.Before we deal with the appeal on the individual directions we should deal with a general complaint which Mr Lindsay has made in an affidavit sworn on the 22 June 1994. The Employment Appeal Tribunal required him to swear an affidavit containing details of the allegations about the way in which the Industrial Tribunal had conducted the proceedings in which those directions were made.Mr Lindsay says in the affidavit that he attended a pre-hearing review in person accompanied by the Reverend Christopher Cooper. Mr Lindsay conducted his own case there, with Mr Cooper's help. He has done the same here. He complains in general terms that he was not allowed to pursue arguments at the pre-hearing review. He wished to refer to documents he had prepared and that was refused. He complains that, after attempting to address the Tribunal, the Tribunal withdrew and returned saying they had no comments to make.He summarises his complaint by saying this:
"I consider that the Tribunal, as well as considering whether the Respondents' application for a Pre-Hearing Review was well founded, should also have considered the case put up by the Respondents to see whether or not it had reasonable prospects of success. This the Tribunal failed to do."
The complaint is therefore that the Tribunal had refused to deal with the matter on the 18 April as an application to strike out the Notice of Appearance. Mr Lindsay had at an earlier stage made an unsuccessful application to strike out the Council's Notice of Appearance. He was also unsuccessful in his attempt to appeal against that order to this Tribunal.He goes on in is affidavit to set out his comments on the particular directions. He says that he wants the documentary evidence with regard to Miss Thompson to prove direct discrimination regarding his application for the position of a cleaner/housekeeper which had been advanced in his case on Higham Hall. He says that he believes that he has to put forward, as evidence of direct sex discrimination and victimisation in the present proceedings, evidence in connection with an application for further employment. It is his belief that documentary evidence with regard to Miss Thompson is relevant to his present claim and therefore discovery should be ordered.He objects to having to start fresh proceedings about his application for employment at Lorton School. His preference was to amend. He finally returns to the general complaint about the conduct of the hearing. He says:
"... a fair minded observer having regard to the issues and having regard to the current Rules considering Pre-Hearing Reviews would have considered that I was not being given the proper opportunity to state my case with regard to the pre-hearing review generally."
It is for all those reasons that he asks this Tribunal to order a fresh pre-hearing review in order to have his case properly heard. For good measure Mr Lindsay annexes as exhibits to his affidavit a detailed letter of complaint about the matter which he sent to his MP, Mr Dale Campbell Savours. He has told us that he has also been informed that this complaint has been passed on to the Lord Chancellor.Mr Lindsay developed these arguments at the hearing this afternoon. He was helped by Mr Cooper, whom we also asked to address us on any matters if he thought Mr Lindsay needed support. Mr Lindsay obviously feels aggrieved by the way the case is going. In our view, his grievance is based on a misconception of the nature of interlocutory hearings and orders. His broad complaint is that he has not won the case, either by successfully striking out the Council's defence, or getting a decision in his favour on the merits.This is a misconceived complaint because the hearing, at which he will have an opportunity to develop his case with witnesses and legal argument, has not yet taken place. The only purpose of interlocutory hearings is to make sure that all the relevant documents, including in the Notice of Application and the Notice of Appearance, are in order. The Tribunal have found that the Notice of Appearance is in order without deciding whether it is a good defence of the Council or not. It is not for them to decide that ahead of the full hearing.The Tribunal has given detailed directions about what documents need to be provided and what documents need not be provided in preparation for the hearing. Mr Lindsay is only entitled to complain by way of appeal to this Tribunal against these decisions, if he can satisfy us that the Tribunal committed an error in law in the way it conducted its proceedings and in the decisions it made. We are quite satisfied that there was no error of law by the Tribunal in the way it conducted the proceedings.In fact, it is correct for a Tribunal to refuse to make decisions on the strength or weaknesses of a case ahead of the full hearing, unless it is satisfied that a Notice of Appearance is frivolous or vexatious or an abuse and should be struck out.The Tribunal were satisfied that the Council's Notice of Appearance was none of these things. It was therefore entitled to refuse to striking out order and also to refuse to Mr Lindsay another opportunity to strike it out on those grounds.Coming now to the individual orders regarding documents and amendments, we are satisfied that all these orders were made without error of law on the part of the Tribunal. On this part of the case we have been helped by the submissions which were made by Mr Brown, on behalf of the Council, in a clear skeleton argument. He submitted that, in his application to the Tribunal in connection with Eaglesfield Paddle School, Mr Lindsay set out at some length the background to his earlier application concerning the termination of his employment at Higham Hall. The documents which he sought and which the Tribunal refused to order the Council to supply to him, all related to the Higham application.At the end of that order the Tribunal indicated to Mr Lindsay that he would be wasting time by calling evidence in relation to the termination of his employment at Higham Hall. His case on that had been settled. We are satisfied for the reasons advanced by Mr Brown, that Mr Lindsay is under a misunderstanding about the relevance, or lack of relevance, of the details of the Higham application.Mr Brown pointed out that the reason why Mr Lindsay appears to wish to reiterate the details of the Higham application and seek the supply of documents is that he believes that he has to put forward evidence of direct sex discrimination in order to bring a claim of victimisation under Section 4 of the Sex Discrimination Act 1975 in connection with his application for further employment.We agree that that belief is not well founded. A complaint under Section 4 requires Mr Lindsay to show, first, that he had brought proceedings against the Council, under the 1975 Act, or has alleged that the Council committed an act in contravention of the 1975 Act; secondly, that he has been discriminated against by the Council, and thirdly, that the discrimination has been by reason of the fact that he brought proceedings or made allegations within the terms of Section 4(1)(a) or 4(1)(c).It is not necessary for him to show that the proceedings or allegations in respect of Higham Hall were well founded. The Council accept in the present case that he had brought proceedings under the 1975 Act against the Council.Mention was made of raising a possible defence under Section 4(2) which might make it necessary to look further into the question of whether allegations were false, or not made in good faith. But the Council does not rely upon Section 4(2). We agree with Mr Brown, that in these circumstances, Mr Lindsay does not have to establish that the Higham Hall application was well founded. He does not need documentary evidence relating to the question whether he was discriminated against in his employment at Higham Hall. It would be unnecessary and wasteful of time and costs at the substantive hearing for evidence to be given relating to the merits of the application which has been settled.In those circumstances the orders made by the Tribunal refusing documents under paragraph 2 and making the indication in the second paragraph 6 of the order, were correct. The appeal against those orders is dismissed.The only outstanding matter is the refusal of leave to amend in the first paragraph numbered 6 of the order. The amendment which Mr Lindsay wished to introduced related to his unsuccessful application for the position of cleaner in charge at Lorton School. We agree with the Tribunal that it was not an appropriate case for amendment. He was making a separate complaint about a different application for a different post at a different school. In their discretion the Tribunal was entitled to take the view that that was better dealt with by a separate application, which could be consolidated with his existing application, rather than by amendment. I have already mentioned that the Council has no objection to consolidation. That would be likely to reduce the time and costs taken in considering the complaints of Mr Lindsay.For all those reasons we have reached the conclusion that Mr Lindsay has not shown any error of law by the Tribunal; either in the general way in which it conducted the pre-hearing review or in the specific orders which it refused to make in his favour by way of discovery of documents and leave to amend his existing proceedings. The appeal will therefore be dismissed.These are our reasons for dismissing Mr Lindsay's appeal. Mr Brown, on behalf of the Council, has now made an application for order that Mr Lindsay pays the costs of the appeal. An estimate has been provided by the Council's Solicitor that the costs are of the order of £500. Mr Brown submits that this is a case in which the Tribunal can award costs under Regulation 34(1) of the Employment Appeal Tribunal Rules 1993 which provides that:
"Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings 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 Brown submits that this appeal was not only unsuccessful; it was unnecessary in all the circumstances that we have described. Mr Lindsay, against this, has argued that he believed that he was right on the points raised on the appeal. He adds that, in his financial circumstances, he would not be able to pay the costs if they were ordered.We have given serious consideration to this application. We do not normally order costs against an unsuccessful Appellant. We appreciate the Council's position that substantial sums of public money are being spent, both here and in the Industrial Tribunal, in dealing with applications and appeals made by Mr Lindsay. They turn out to be unsuccessful and are to a large extent, misconceived.We do not, however, think that this is a proper case in which to order costs at this stage of the proceedings. We would say this: the Industrial Tribunal has already given a strong indication to Mr Lindsay in the concluding paragraph of their order of the 18 April, that if, at the hearing of his complaints, he calls evidence relating to irrelevant matters, there is a risk that the Tribunal will order him to pay costs in respect of time wasted. We fully endorse that. It may be that if, when the case is heard, it is unsuccessful, the Industrial Tribunal will take into account the overall conduct of Mr Lindsay in relation to the proceedings, including appeals from their own decisions.We warn Mr Lindsay of the risks as to costs that he runs in any further appeals to this Tribunal, as well as in relation to proceedings which he pursues before the Industrial Tribunal. We also add this; that, although Mr Lindsay did not take kindly to the suggestion when it was made in the course of the hearing, we are of the view that he should seek legal advice about the proceedings. Advice is available from Citizens Advice Bureaux', from Legal Advice Centres and from the Free Representation Unit in connection with cases of this kind. If he sought that advice and carefully considered it, he might be able to protect his position, both in relation to his complaints and in relation to future risks as to costs.Sex discrimination cases are not easy cases for a complainant in person to deal with and if, as the Tribunal estimates, this hearing is to going to take three days, it will place a very great burden on Mr Lindsay to conduct his own case without expert advice or representation. With those comments then we do not make an order in relation to the costs of this appeal.