Bharj v Brunel University & Anor [1995] UKEAT 804_94_1703

EAT
Bharj v Brunel University & Anor
[1995] UKEAT 804_94_1703 · 1995-03-17
MR JUSTICE MUMMERY (PRESIDENT): This is an application to review an order made by this Tribunal on 15 November 1994. The order was that on the Preliminary Hearing of the appeal by Mr Bharj against Brunel University and Mr Taylor, the appeal was to be dismissed. Mr Bharj was not present or represented at that hearing. The circumstances in which he was not present or represented are explained in the judgment of the Tribunal given on that day. The judgment also explains why, after due consideration of the papers, in particular the Decision and Notice of Appeal, it was decided that there was no arguable ground of law for pursuing the case to a full hearing.On 28 November 1994, Mr Bharj wrote to the E.A.T. further to the correspondence which he had before the hearing as referred to in the Decision. He said:
"As you are aware my previous Solicitors Bhagwandeen & Co. Solicitors ceased to act for me from the 10th November 1994. My request for an adjournment was refused and I was instructed by the Registrar to either instruct another solicitor or attend in person to explain the situation.
Unfortunately due to the stress of losing my solicitor, who is familiar with the case, and my subsequent illness, I was both unable to instruct another solicitor or attend the court in Person. Please find enclosed, herewith, another copy of Medical Certificate in support. Please note I have already sent original to you prior to the hearing and enclose copy of recorded Delivery slip.Furthermore, I understand that as I was unrepresented, the Registrar ordered that the appeal be dismissed.I am totally bemused and dismayed by the whole situation. Through no fault of mine, I firstly lose my legal representative and then fall ill, only to find that my appeal is dismissed. I realise that the Registrar did not have any alternative as he made the decision without knowledge of my situation as he has not refered to my fax dated 14th November.However, I humbly request the court to set aside the decision to dismiss the appeal, and give me an opportunity of instructing another solicitor to represent me.I hope the Registrar will consider the fact that through no fault of mine I am suddenly deprived of pursuing my rights and obtaining justice.

I look forward to hearing from you with a fresh hearing date."

That letter was accepted by the E.A.T. as an application by Mr Bharj to review the decision of 15 November, pursuant to Rule 33 of the Employment Appeal Tribunal Rules. He was informed on 30 January that the matter would be listed for a further preliminary hearing and that he would be advised of the listing date shortly.Under Rule 33 of the Employment Appeal Tribunal Rules 1993:
"The Appeal Tribunal may, either of its own motion or on application, review any order made by it, and may, on such review, revoke or vary that order on the grounds that-- (c) the interests of justice require such review."
On the hearing today, we have been greatly helped by Miss Jennifer Eady, who has appeared for Mr Bharj. It appears that, on the application for review, there are three matters which we should consider, in deciding whether or not to exercise our discretion to revoke or vary our previous order, in the interests of justice.The first area is the conduct of the appeal. The second and third areas are criticisms of the conduct of the hearing by the Industrial Tribunal. First, the conduct of the appeal. There are certain matters in relation to the conduct of this appeal, relevant to the exercise of our discretion. We would say clearly at the outset that, so far as we have been able to ascertain, neither Miss Eady nor her instructing solicitors, Whiskers of Harlow, are responsible for any of the matters which we shall mention and no criticism is to be made of the way in which they have dealt with the matter.The position, so far as we have discovered from documents and with the help of instructions, obtained by Miss Eady from her client, is this; the hearing of the complaint by Mr Bharj v Brunel University and Mr Taylor took place on 18, 19, and 20 April 1994.Mr Bharj was represented by an adviser, Mr Bhattacharjee, Counsel, Mr Dean represented the Respondents. It appears that, at that time, Mr Bhattacharjee was involved with the Hackney Citizens Rights Group. He appears to have continued to be involved with the Hackney Citizens Rights Group certainly down to the middle of May 1994. Sometime between then and November 1994, he went to work for, or in association with, a firm of solicitors, Bhagwandeen & Co., in City Road. On 12 October 1994, a Legal Aid Certificate limited to obtaining further evidence and Counsel's Opinion on the merits was issued. That Certificate was subsequently discharged, but not until 3 February 1995. The next thing that happened was that on 14 November 1994, the E.A.T. received a letter from Bhagwandeen & Co. dated 11 November, saying:

"Dear Sirs

RE: MR BHARJ v (1) BRUNEL UNIVERSITY (2) MR TAYLOR

With reference to the preliminary hearing listed for 15 November 1994, we have obtained advice on the merits of the case from Counsel and we would like to withdraw from the representation of the case. We have informed our client of the same, who wishes to proceed without our representation"Miss Eady says that she has not been able to find in the papers submitted to her by the solicitors, Whiskers, who in turn obtained the files from Bhagwandeen after they were instructed, any record of advice from Counsel. All she has been able to find are instructions (which we have not seen) which appear to be of a flimsy nature. Simply instructions to Counsel to advise. She tells us that Mr Bharj can remember being told that Counsel's advice would be sought, but he cannot recollect either being told what that advice was, or being shown a copy of any advice.What then happened was that Mr Bharj was ill. The Medical Certificate evidenced that. He was ill until sometime in December. He was away in India from the middle of December to the middle of January. He returned to the United Kingdom in the middle of January. From the date of his return to about the middle of February, he was making efforts to obtain other solicitors to represent him. On 13 February 1995 he phoned his present solicitors, Whiskers, who at first believed that he was legally aided. He had a meeting with them on 22 February. Arrangements were then made for an application for Legal Aid. On 23 February, Whiskers asked Bhagwandeen for all the files. The application for Legal Aid was made on 24 February. It was refused on 10 March. Miss Eady was not instructed in relation to this preliminary hearing on the review until 15 March.That is the background to the way in which this appeal has been conducted. We now move to the criticisms which have been made of the way in which the hearing for the Industrial Tribunal was conducted. Miss Eady has identified, in a helpful note, two areas on which she wishes to make submissions on behalf of Mr Bharj. The first is whether there was a real danger of bias, which might be inferred from the conduct of the Industrial Tribunal. The second is whether the conduct of the Tribunal was such as to have prejudiced the fair hearing of the case. We are satisfied on, having looked at the documents and heard Miss Eady's submissions, that there is nothing of substance in either of these criticisms. The first is the allegation of bias. Although it was referred to in our judgment, it was not dealt with in detail on this particular aspect. The particular aspect highlighted today, is that in his Affidavit, sworn on this Appeal on 1 July 1994, Mr Bharj says this:
"The Chairman informed us that she wanted a settlement to be reached and showed displeasure at the fact that it was not."
It is pointed out by Miss Eady that in the Chairman's comments on the various criticisms that are made, (they are contained in a letter of 10 August 1994) the Chairman does not dispute that particular allegation.Miss Eady amplified the matter on instructions. She says that the displeasure was shown at Mr Bharj's non-acceptance of an open offer of £5,000 by the University and that the displeasure of the Chairman was directed at Mr Bharj. There is no detailed evidence in relation on this. We comment, first, that this matter is not put as a ground of appeal in the Notice of Appeal, signed by Mr Bharj on 13 June 1994. The grounds of the appeal are that there was bias on the part of the Chairman and or a member of the panel, in that:(1) the Chairman did not allow the Appellant's case to be properly heard, without interruption.

(2) the Chairman failed to admit certain relevant evidence and

(3) during the course of the hearing, one of the members of the panel revealed that he was a former student at the Respondents University and demonstrated personal knowledge of the relevant University policies.The panel Chairman did not declare a possible conflict of interests at the commencement of the hearing, nor did the Chairman raise it as an issue with the parties. Even when the connection became known, the Chairman did not take up the issue and the Appellant was not given an opportunity to object to the panel member hearing his case.Those criticisms were dealt with in our Decision of 15 November. It is significant that there is no mention of the serious allegation of bias, in the form of exhibiting displeasure directed at the Appellant. Nor, we would add, is there any mention of this allegation in the detailed letter sent by Mr Bhattacharjee, on Mr Bharj's behalf, to the Industrial Tribunal in support of an application for review; the letter is dated 18 May 1994. The letter contains seventeen paragraphs of detailed criticisms. There is no mention of this point. Miss Eady seeks to meet that by saying, as it was an application for a review, it would not have been appropriate to raise this particular point. It was more a matter for appeal. We appreciate that, but we still find it surprising that, when a request for a review was made on so many grounds of criticism, this was not mentioned, even if it was not a matter that could be dealt with by the Tribunal hearing the review. We are satisfied that there is nothing in this point; there was no real risk of bias. We have no particulars on which we could reach such a conclusion from the Affidavit or the Exhibits.The second area of criticism of the conduct of the Tribunal is based upon the allegations in Mr Bharj's Affidavit, as reinforced by the detailed points made in Mr Bhattacharjee's letter, (which is exhibited). Mr Bharj says in complaint:
"The Chairman did not allow my case to be properly heard without interruption. The Chairman constantly interrupted my advocate during cross-examination. This continued for the 3 days of the hearing."
On this particular point the only relevant paragraph in Mr Bhattacharjee's letter is paragraph 7. He says:
"As the representative, I found that my line of questioning, was challenged at most stages by the Chair thus curtailing my ability to draw evidence upon cross examination from the respondents and their witnesses. I was therefore basically muted by these interruptions and could not do justice to our clients case."
Miss Eady submitted that, if it was the case that Mr Bhattacharjee was effectively prevented from presenting Mr Bharj's case, then he was denied the opportunity to be heard. She pointed out that the Chairman had not addressed this contention in the comments made on the criticisms. So it cannot be said at this stage that Mr Bharj has no arguable case.In our view, the short answer to this is that the allegation is impossible to answer, without specific examples. It is not inevitably improper, or unfair, for a Chairman to interrupt a line of questioning, if the line of questioning is irrelevant to the issues in the case. It may be entirely proper for the Chairman to interrupt and challenge the questions, to prevent them from being put or repeated. In the absence of any indication from Mr Bhattacharjee andMr Bharj as to what the line of questioning was, it is impossible to conclude that the Tribunal acted in any unfair way in curtailing the questioning. There has been ample opportunity for further particulars of these matters to be put before the Tribunal, either by Mr Bharj or with the help of evidence from Mr Bhattacharjee. No such particulars have been given. We do not think it is appropriate now to allow further time for this to be done.A final matter, Miss Eady said in relation to the various points that we have mentioned about the conduct of the appeal, that Mr Bharj is not to be blamed for the way in which the appeal has been conducted. We appreciate there may be no personal blame, but if he has appointed representatives to act on his behalf, Mr Bharj or Mr Bagwhandeen, he must, as far as we are concerned, and as far as the Respondent is concerned, take the consequences of what they have done. If they have in any way handled his case with less care than is appropriate or have done anything which is open to criticism by him, his complaint is to be directed at them. It does not provide an excuse for what has happened. In our view, taking into account the way in which this appeal has been conducted, in conjunction with the two points highlighted by Miss Eady, we are satisfied that the decision made on 15 November to dismiss this appeal was correct. The interests of justice do not require us to review that decision. We decline to grant a review.