Millar v Blackburn Borough Council [1997] UKEAT 110_97_0912

EAT
Millar v Blackburn Borough Council
[1997] UKEAT 110_97_0912 · 1997-12-09

JUDGE HARGROVE QC :

The original claim in this case was that there was discrimination by way of victimisation contrary to s.2 of the Race Relations Act 1976 ; automatic constructive dismissal under s.100(1) and s.152(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 because Mr Millar was carrying out functions of a shop steward; thirdly, sex discrimination, this was dismissed because it was withdrawn by the appellant on 17th September 1996 at the prehearing discussions, and later by a letter in November he sought to have that claim reinstated. On that occasion the tribunal made certain interlocutory orders for the production of documents, five in all. The respondent produced one of those documents, two were no longer in existence, and the remaining two had not been produced at the date of trial. The respondent had not produced a chronology or provided certain lists. It is fair to say that by letters of 14th October wherein the appellant sought to have the Notice of Appearance struck out and the trial postponed, and by a lengthy letter of 28th October, the appellant said he could not be ready. He maintained that he could not know what witnesses to call if he had not had the two documents to which I have referred. On 1st November the appellant sent a further letter to the tribunal asking that the Notice of Appearance be struck out and the trial be postponed.The matter came on 11th November. There were two documents which were missing. The appellant sought to postpone the case. The tribunal decided not to do so, but to offer to wait until 2 p.m. so that the documents could be produced. That did not satisfy the appellant. He also wanted to strike out the respondent's IT3 and that refused. The manner in which that was dealt with by the tribunal was as follows:
"8. The Tribunal has considered the application to strike out the respondents defence to this claim and/or its Notice of Appearance and finds:-
8.1 The respondents have attempted to comply with the Order for Directions and the deficiencies in this regard are insufficient to justify striking out the Notice of Appearance. The applicant admits that as at the date of the hearing the only documents he has not received are documents 4(1)(a) and (b) referred to in the Order but this is the result of a mistake. The respondents have agreed to provide these documents by 2 pm this afternoon. All the other matters in relation to which orders have been made and struck compliance has not been observed, that is, in relation to the preparation of a paginated bundle and chronology of events, is ordered for the convenience of the Tribunal. In these circumstances, the Tribunal is not prepared to strike out the Notice of Appearance.8.2 The Tribunal has read a witness statement of Mr Umerji which contains serious allegations concerning the interference with witnesses by or on behalf of the respondents. This statement was not given under oath and the absence of Mr Umerji the Tribunal is not prepared to give it sufficient weight to substantiate such serious allegations. In these circumstances the Tribunal is not prepared to strike out the Notice of Appearance on this ground.The application to strike out the Notice of Appearance and/or to debar the respondent from defending the proceedings is refused."The appellant elected to give no evidence. He relied upon his written submissions. He refused to pursue his claim saying that he would prefer to give his evidence for the first time before another tribunal once this tribunal, on appeal, had ordered a re-trial.The Industrial Tribunal dealt with that at paragraph 4:
"4.1.1. Copies of the letters referred to in paragraphs 4(i)(a) and 4(i)(b) of the Order for Directions were sent to the applicant on 26 September. The respondents then received a letter from the applicant dated 7 November 1996 stating that he did not have those documents but in view of proximity of the hearing, it was too late to remedy that defect. The letters were not in the bundle of documents prepared by the respondent for the hearing, and the respondent could not provide an explanation for the absence of the documents from such bundle. The respondent could produce those by 2 pm of the day of the hearing and would be prepared to agree to an adjournment to 2 pm to allow such documents to be produced and for the applicant to study them. The applicant has not been disadvantaged in the presentation of his case by the failure to have these two documents, such failure not being fatal to his application. The respondent has provided copies of all other documentation and four witness statements to the applicant. The respondent has not seen the documents that the applicant has referred to in his lists but makes no application to adjourn in relation to that failure."
There is a further reference to that in paragraph 12:
"12.1 The absence of the two documents referred to at paragraphs 4(i)(a) and (b) would not have prevented the proper preparation of the applicant's claim; and
12.2 The absence of such two documents would not have prevented the preparation of the applicant's claim in its entirety, and would not have prevented him calling his witnesses.12.3 The applicant has never requested the documents which he lists from the respondents before. The applicant is on a fishing expedition."As I have already indicated, the appellant also made allegations that the respondent had interfered with a witness. There was a statement that was not sworn, nor was the witness present or called. The proper approach to these matters is set forth quite clearly in Peach Grey & Co v Summers [1995] ICR 200 , where it is pointed out that the correct approach where this type of matter is dealt with is that the proper standard of proof in contempt of court cases is the criminal standard of proof. The tribunal, therefore, was absolutely justified in saying that they would not look at that type of evidence as being adequate to support such a very serious allegation.The respondent submitted that there was no case to answer. This is an unusual submission. One can see the approach in Walker v Josiah Wedgwood & Sons [1978] ICR 844 , which said that in Industrial Tribunals submissions of that type were somewhat out of place. That is obviously true in the vast majority of cases, but where the litigant upon whom the burden of proof lies elects not to give evidence, save for written evidence, and calls no witnesses, in order that he may appeal and call his evidence at a rehearing which he seeks to obtain on appeal, those circumstances amply justify the Industrial Tribunal in taking the view that there was no case for the respondent to answer.The appellant says that the effect of the decision was that the tribunal at the final hearing had reviewed the decisions of the prehearing tribunal, and since it was not the same tribunal by way of personnel, it was not lawful for the final tribunal to do so. By way of illustration, he says that he was given 39 days to look at the documents before the prehearing decision was given, and a matter of minutes if he waited until 2 p.m. on the day of trial. He relies upon Medallion Holidays v Birch [1985] ICR 578 , the Employment Appeal Tribunal held that this tribunal has no general authority to review Industrial Tribunal interlocutory decisions, unless there has been an error of law. He also relies upon the rules of the Industrial Tribunal which prevent the review of one tribunal's decision by another. The appellant says that that must apply a fortiori to the case of a tribunal of equal jurisdiction. Unfortunately, this is a fundamental error as to functions of a tribunal on a prehearing discussion and a tribunal's duties on a final hearing. By that latter date matters will have changed and it is for the final tribunal to exercise its discretion in the light of matters which are then occurring. That discretion must of course be exercised judicially. Here the appellant says that the tribunal was in error in not taking into account such matters as whether the documents were vital or not, when the matters were finally decided by the prehearing discussion.Further, it is said that the tribunal failed to take account of the failures which were all the fault of the respondents and yet this disadvantage would be entirely borne by the appellant. His attitude is that the respondents have deliberately disobeyed the orders of the court so that they can obtain an unfair advantage in his case which will not be properly prepared. In this, says the appellant, they are continuing the victimisation which is the subject of his claim. Putting these matters shortly, he says, there is a breach of natural justice in that as a result his side of the case has not heard and further, that justice has not been seen to have been done.The appellant further says that the decision of the tribunal was perverse and that no tribunal properly instructing itself could have reached such a wholly wrong decision. The fact that the members of this tribunal might, with the benefit of hindsight, have reached a different decision, is of no importance. The Industrial Tribunal is master of its own procedures.The difficulty with the appellant's case, quite apart from matters of law, is the approach he adopted at trial. He emphasised to us that one of the documents comprised extensive notes kept by two persons who interviewed him. He says that it was from that interview the victimisation stemmed, and that interview would show that he was being persecuted and that it was not a reprimand for errors complaining by way of defensive strikes to all in sundry. If no notes were produced, then he was in an excellent position at the hearing to say that he was there and this was what happened, and the respondents would have been in the most difficult position in trying to contradict his evidence. He says it would have been an advantage to him to have that document before him in cross-examination. In fact he refused to give evidence save by way of written, unsworn submissions, he failed to take up the offer of an adjournment until 2 p.m. Had the documents arrived, he could have renewed his application. If there was anything in his claim the tribunal would have had the documents before them. In fact, he did not have any witnesses present at all apart from himself. In that, the heart of the situation may lie.We regret to say that there is nothing in any of those points which he has raised. The tribunal exercised its powers in a proper manner, and there was no error of law. It has to be remembered that the fact that the appellant did not achieve what he wanted is not an error in itself.Further, it is said that the decision was perverse. It is impossible to say that in this case there is any element which could pass the high test of perversity which Mummery J set forth in Stewart v Cleveland Guest Engineering . In all the circumstances, therefore, this appeal fails.Before leaving it we should perhaps say that it is singularly unfortunate if random allegations of bias are aimed at a tribunal and at officer of the court, and then at the last moment withdrawn. I bear in mind the fact that the litigant is a litigant in person, however, standards of normal honesty and decency must apply even in those cases, and applications of bias of a random nature should never be made.Application for costs on behalf of the respondents refused.