Osei v Irish Life Assurance Ltd [1997] UKEAT 1339_95_0611

EAT
Osei v Irish Life Assurance Ltd
[1997] UKEAT 1339_95_0611 · 1997-11-06

JUDGE PETER CLARK :

This is an appeal by Mr Osei, the Applicant before an Industrial Tribunal sitting at London (South) under the chairmanship of Mr John Warren on 1 and 22 September 1994 and in Chambers on 3 August 1995, against that Tribunal's decision to dismiss his complaint of unlawful racial discrimination. Extended Reasons for that decision are dated 25 August 1995.

Background

The Appellant worked as an appointed representative for the Respondent, Irish Life Assurance Plc under the terms of a written agreement dated 9 March 1988. The agreement was for a fixed term of three years. On expiry of that term the agreement was not renewed by the Respondent. Instead the Appellant was offered work as a company representative. He rejected that offer and commenced proceedings in the Industrial Tribunal by an Originating Application presented on 11 April 1991.In his complaint he describes himself as being of African ethnic origin. The nature of the case advanced was that in not renewing his appointment as an appointed representative of the Respondent he was treated less favourably on racial grounds. The claim was resisted.

The Industrial Tribunal Decision

At an earlier hearing an Industrial Tribunal chaired by Mr David Milton had found that the Appellant was employed by the Respondent within the meaning of Section 78 of the Race Relations Act 1976 .This Industrial Tribunal found that the sole reason for the non-renewal of the Appellant's appointment was his poor performance in generating insurance business for the Respondent. Other representatives, including white representatives, had not had their appointments renewed for precisely the same reason. In the judgment of the Industrial Tribunal the Appellant failed to establish that he had been less favourably treated than a proper comparator. Even had disparate treatment been made out, it is clear that the Tribunal accepted the Respondent's explanation for not renewing the agreement. His claim accordingly failed. It was dismissed and he was ordered to pay £500 costs to the Respondent.

The Appeal

The appeal against that decision was launched by a Notice dated 6 October 1995, signed by his then Solicitors, Bindman & Partners. The grounds of appeal are directed to the conduct of the Industrial Tribunal hearing his complaint. Bias, or the appearance of bias, is alleged. Further, there is an appeal against the order for costs.The appeal has taken two years to come on for hearing. That is an unusual delay these days. The reasons for the delay are two-fold; first, various affidavits have been filed on behalf of the parties, and comments obtained from Mr Warren, on the allegations raised by the Appellant. Secondly, the Appellant had the advantage of a legal aid certificate to pursue this appeal. That certificate was discharged, and an appeal against that decision failed. Accordingly from and since about May 1997 the Appellant has been an unassisted person. That explains why an earlier hearing of this appeal was vacated.The matter was listed for hearing today. On 27 October 1997 the Appellant applied for an adjournment of today's hearing on the basis of a medical certificate dated 27 August 1996 from a Dr. H. Ramnani. That certificate reads:
"This is to state that this gentleman Mr Osei is still under medical treatment regarding his backache and hypertension and anxiety state which is likely to continue for two years or so."
The application for an adjournment was refused by the Registrar.This morning there has been no attendance by or on behalf of Mr Osei. The time now is 11.30 am.We have been invited by Mr Choudhury, who appears on behalf of the Respondent, to dismiss this appeal simply on the basis that the Appellant has failed to attend and has shown disrespect for this Tribunal and its procedures, as the Respondents say he did for the Industrial Tribunal below. We have considered that application and reject it.However, Mr Choudhury's second submission is that we should proceed to hear the appeal on its merits today in the absence of the Appellant. We accede to that application for two reasons; first, the medical certificate submitted is more than a year old on its face; no attempt has been made to update it, but secondly, even if it is accepted on face value, the fact that Dr Ramnani anticipated medical treatment continuing until about August 1998 does not amount to an opinion that, in November 1997, the Appellant is or would be unfit to attend this appeal hearing and argue his case.In our judgment, taking into account the interests of both parties, the just course is to hear and determine the appeal today on the basis of the documents and oral representations made on behalf of the Respondent.

Overview

The claims and counter-claims as to what transpired at the hearing before the Industrial Tribunal are contained in:

(1) The Notice of Appeal

(2) The affidavits of the Appellant sworn on 25 October 1995 and 14 May 1996

(3) The affidavits sworn on behalf of the Respondent by Mr Peter Wallington, who appeared as Counsel for the Respondent before the Industrial Tribunal in September 1994, and Mr Woolhouse, the Solicitor having conduct of the Respondent's case throughout, who also attended those hearings.(4) The comments of the Chairman, Mr Warren, on the Appellant's first affidavit, and his subsequent letter to the EAT dated 17 July 1996.We make the following general observations on that material:(1) Where there is a conflict between the evidence of the Respondent's deponents, as endorsed by the Chairman and that of the Appellant, we accept the former account, for the policy reasons explained in Roberts v United Friendly Insurance Plc (EAT/436/95) Unreported. This is particularly so where, as the Chairman observed in his letter of 17 July 1996, a person whom the Chairman believed to be a barrister, Mr Achiempong, attended as an observer on the Appellant's side during the Tribunal hearing, following the withdrawal of his then legal advisers. Further, the Appellant has himself, in a number of respects, resiled from evidence given in his first affidavit during the course of his second affidavit in reply to the Respondent's evidence.(2) It is perfectly clear that the Appellant behaved appallingly during the course of the Tribunal hearings. Conversely, the Chairman, as he, with hindsight, now accepts, was if anything too lenient in his treatment of the Appellant during the hearing.

Bias

We apply the test laid down by the EAT in Peter Simper & Co Ltd v Cooke [1986] IRLR 19, and affirmed by the House of Lords in R v Gough [1993] AC 646 ; it is not necessary for a party complaining of bias on the part of the Tribunal to show actual bias; it is enough that a reasonable observer would objectively consider that there was a real danger of bias on the part of the Tribunal or one of its members.The detailed complaints set out in the grounds of appeal may be grouped as follows:(1) The Chairman refused to adjourn the proceedings on the first day of hearing:On 1 September 1994 the Appellant began the day represented by Solicitors and Counsel, Mr Cofei. Following a pre-hearing conference, which the Appellant says in his first affidavit lasted for five minutes, although Counsel arrived on his evidence at the Industrial Tribunal offices at 8.30 am and the hearing commenced at 10.15 am, Counsel applied for an adjournment on the basis that further discovery was required from the Respondent. The documents sought, we are satisfied, related to other agents whose appointments were not renewed, rather than those whose appointments were renewed. Accordingly the material was of limited relevance to the issue of less favourable treatment. That discovery application was refused. We see no grounds for complaining of bias, or the appearance of bias in that permissible exercise of the Tribunal's discretion.(2) The Industrial Tribunal's refusal to adjourn when the Appellant found himself unrepresented:Having failed in the discovery application Mr Cofei and those instructing him declared themselves to be professionally embarrassed and withdrew from the case. We note from paragraph 15 of the Appellant's first affidavit that Counsel advised him that without that discovery the Appellant would not be successful in his case.In requiring the Appellant to present his own case, rather than adjourn the proceedings, we are satisfied that the Chairman and the Tribunal were acting within the proper exercise of their discretion, bearing in mind that the Appellant was familiar with the case and the documents, it having been in train for some three and a half years at this stage. He had been present at various earlier interlocutory hearings and was familiar with Industrial Tribunal procedures to that extent.There was an observer, Mr Achiempong present after the withdrawal of Mr Cofei and his instructing Solicitors.Industrial Tribunals are well used to dealing with, and assisting where appropriate, litigants in person and finally, one must not forget the interests of the other party to these proceedings. Further delay would mean further costs for the Respondent.We are quite unable to say that the exercise of the Tribunal's discretion to continue with the case was unreasonable in these circumstances for such as to give the impression of bias to an impartial observer.The fact that the Appellant repeated his application for an adjournment some six further times during the course of the first day of hearing does not alter that view.(3) The conduct of the Chairman during the proceedings:The nature of the complaint is that during the hearings the Chairman was aggressive and shouted at the Appellant on a number of occasions. The account given in the Respondent's evidence and by the Chairman is quite different. It was the Appellant who conducted himself in such a way as to cause one of the lay members to observe that in 20 years of sitting on Industrial Tribunals he had not seen a man as rude as the Appellant. This extreme view was echoed by both Counsel and the Solicitor for the Respondent. We accept their account. Indeed, on the evidence before us it may be thought surprising that the Chairman declined to exercise his powers under the new Rule 13(2)(e) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 , to strike out the application on the grounds of the Appellant's scandalous conduct during the hearing. That he chose not to do so seriously undermines the Appellant's claim of bias in our view.(4) The Appellant complains that at the start of the second day the Chairman read out a copy of a letter which the Appellant had written to his Member of Parliament, Mr Michael Portillo, asking him to intervene in the proceedings. We fail to understand that complaint. The Appellant had copied that letter to the Industrial Tribunal but not to the Respondent. The Respondent was entitled to know what was said. It would be entirely inappropriate for a member of the executive to interfere with incomplete judicial proceedings by acceding to the Appellant's "demand" that the case be transferred to a new Chairman. Further, there is a dispute as to whether the Chairman commented adversely on the letter; whilst we accept that he did not do so, the remark attributed to him by the Appellant, that the Appellant was very rude and arrogant, would not, in the context of the Appellant's general behaviour during the hearings, seem inapposite.(5) The decision to adjourn for 11 months, and to hold the final day in Chambers:It is right to say that following the second day of hearing on 22 September 1994 the matter did not come back for consideration by the Tribunal until 3 August 1995.We take what happened during that period from the affidavit of Mr Wallington. The evidence was concluded on the second day and the parties were invited to make closing submissions in writing, which they duly did.Meanwhile, the Appellant had appealed to this Tribunal against the Industrial Tribunal's refusal to order discovery and grant an adjournment on 1 September 1994. That appeal was compromised during a hearing before a Tribunal presided over by Mummery J, on 14 December 1994. Under the agreed terms arrangements were made for further discovery to be given. The matter went back to the Industrial Tribunal which, by a letter dated 16 January 1995, allowed the Appellant 21 days in which to make further representations as to discovery. That time limit was allowed to pass, in circumstances which may give rise to criticism of the Appellant's then Solicitors, McHale & Co, but not the Respondent or the Industrial Tribunal.A subsequent application for an extension of time was refused on 21 March, and an application for a review of that order was rejected by the Chairman on 25 April 1995. There is no appeal against those orders.Thereafter, arrangements were made for the Tribunal to meet and discuss the case, written submissions having been received from both sides, and that meeting took place on 3 August 1995. Since no further submissions or evidence were required the Industrial Tribunal followed the usual practice of considering the matter in Chambers. We see nothing exceptionable in that.Having considered the various complaints raised by the Appellant, and the responses to those complaints, we have no hesitation in rejecting the allegation of bias. Indeed, we think that an objective observer would be amazed that a litigant should treat a judicial body in so cavalier a manner.

Costs

It is said by the Appellant that in making the order for costs the Industrial Tribunal failed to hear representations on the question of costs and failed to consider his means before making the order. It is not, we note, suggested that this was not a case which fell within the scope of the Industrial Tribunal's powers to make an order under Rule 12(1) of the 1993 Rules.In our judgment this complaint is misconceived. At the end of the second day Counsel for the Respondent indicated orally that an application for costs would be made. That application was repeated in the Respondent's written submissions. The Appellant had the opportunity to respond by way of written submissions, in his case prepared by or with the assistance of a Solicitor, giving such information as to his means as he thought necessary. He did not do so. On two earlier occasions in the proceedings costs orders had been made against him. A third costs order was subsequently revoked. He apparently had the funds to instruct no less than three firms of Solicitors up to that point in Industrial Tribunal proceedings in which Legal Aid is not available. In these circumstances we cannot say that the order for costs fell outside the proper exercise of the Industrial Tribunal's discretion.Accordingly, in these circumstances, the appeal is dismissed.Mr Choudhury makes an application for costs in the appeal of today's hearing..Our powers to award costs are dealt with in Rule 34(1) of the Employment Appeal Tribunal Rules 1993 :
"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."
We have absolutely no doubt that the Appellant's conduct in continuing this appeal to a hearing was unnecessary and indeed vexatious. The application plainly falls within Rule 34(1) and is a proper case in which to order costs.However, we make two observations. The first is that for a time, until its discharge, the Appellant enjoyed the benefit of the Legal Aid certificate. In these circumstances Mr Choudhury has realistically limited his application to the costs of today's hearing, which of course has taken place after the discharge of the Legal Aid certificate and further, has limited those costs to £700. We think that is the appropriate sum to order.The second point is this. We have before us, in the Appellant's letter of 27 October 1997, this information:
"Because of ill-health I am not working and have no income to pay for legal representation."
Bearing in mind that limited information as to his means, we think the proper order to make in this case is an order that the Appellant pay the sum of £700 in costs to the Respondent; that order not to be enforced without the leave of this Tribunal.In those circumstances it will be for the Respondent to show that the Appellant is in a position to meet that financial obligation.