Maloney v London Borough Of Hammersmith & Fulham & Ors [1998] UKEAT 1083_96_2101

EAT
Maloney v London Borough Of Hammersmith & Fulham & Ors
[1998] UKEAT 1083_96_2101 · 1997-12-12

JUDGE HARGROVE QC :

The appellant was a teacher at the Phoenix High School which was controlled by the first respondent. She had presented Originating Applications to the Industrial Tribunal between August 1992 and September 1994. None of these had come to a hearing. Each of the applications contained four sub-allegations of unlawful acts amounting to 16 in all. The cases were consolidated and were listed for a 25 day hearing to start on 17th June 1996. The appellant had indicated that she would be calling some 39 or 40 witnesses.On 10th June 1996 the appellant took sick leave. On 12th June she applied for a postponement on the grounds of ill health. This was refused in writing on 14th June. It appears that there was a further consideration by another Chairman and the postponement was again refused.At the hearing on 17th June the appellant, who was represented at all times, made a further application for an adjournment. The Chairman allowed an adjournment for seven days for more precise evidence to be brought forward on the appellant's medical condition. The next hearing was on 24th June. The appellant did not attend. She was again represented by Mr Mukerji who indicated that his presence was limited to applying once more for an adjournment. That was refused and he withdrew. The hearing then continued with the evidence of Ms Watford the Director of Education and all the applications were dismissed.The appellant correctly begins her consideration of the question when should an adjournment be granted by the case R v Kingston-upon-Thames Justices ex. parte Peter Martin [1994] Imm AR 172 . It is not necessary to go into the details of that, save that the Divisional Court set out a number of matters which should be taken into account in deciding whether or not to grant a request to a party for an adjournment. It is not thought that the list is comprehensive, nor indeed from the very nature of applications for adjournments, can it be. The matters which the Divisional Court considered were:
".1 The importance of the proceedings and their likely adverse consequences to the party seeking the adjournment.
. 2 The risk of the party being prejudiced in the conduct of the proceedings if the application were refused.. 3 The risk to prejudice or other disadvantage to the other party if the adjournment were granted.. 4 The convenience of the court.. 5 The interests of justice generally in the efficient despatch of court business.. 6 The desirability of not delaying future litigants by adjourning early and thus leaving the court empty.. 7 The extent to which the party applying for the adjournment had been responsible for creating the difficulty which had led to the application."The appellant also relies upon the case Thorne v General Commissioners of Income Tax for Sevenoaks & Another The Times, 12th May 1989 . The Commissioners had refused to grant an adjournment to a tax payer who was sick. The proceedings were to recover substantial penalties and interest on overdue tax. The Crown had accepted that an adjournment ought to have been granted if four conditions were satisfied
"(1) that the tribunal accepted the evidence that the taxpayer was unable to attend on the ground of ill health;
(2) that his evidence was reasonably necessary if his case was to be properly presented;(3) there was a reasonable prospect that he would be able to attend an adjourned hearing at a specific reasonable future date, and(4) the other party suffered no injustice which could not be remedied by an award of costs or otherwise."The Court dealt with the matter in following terms:
"The principal dispute between the parties was the existence and extent of condition (3). Implicit in the decision in Dick v Piller was the principle if evidence showed that the illness was such that the person in question would never be able to attend to give evidence then an adjournment should be refused because of the circumstances there could be no miscarriage of justice.
In Rose v Humbles the medical evidence was that there was a good chance of the taxpayer being capable of giving evidence in two or three months' time.In any given case the medical evidence would come within a range: at one extreme was the commonplace illness such as chickenpox when a doctor could reasonably give a date by which the person would be fit to attend, and at the other extreme was the case of permanent or terminal illness when a doctor could say that the person would never be able to attend.But in between were many cases when from the nature of the illness no doctor could say that the patient would recover.If the Crown's submission was right no adjournment should be granted in those cases regardless of the consequences to the taxpayer.If all four conditions existed then, as the Crown accepted, an adjournment should be granted. But it did not follow that if condition (3) was not satisfied because the medical evidence did not indicate a reasonable prospect of the taxpayer being able to attend at a future time the adjournment had to be refused.That medical evidence was one of the factors to be considered in deciding whether to grant an adjournment or not.Here the commissioners' decision showed that they regarded the inability of the doctor to state when the taxpayer would be fit as sufficient in itself to refuse an adjournment.They did not consider, as they should have done, whether in all the circumstances, including the size of the claim against the taxpayer, to refuse an adjournment would give rise to an injustice to him.

Thus they erred in principle ..."

The relevant parts of the extended reasons given on 19th August 1996 are as follows:
"6 The tribunal took the view that it would be a very serious step to postpone a case listed for 25 days with an estimated 40 witnesses. The tribunal did not feel able to reach a decision on the postponement application on the basis of the rather slender medical evidence which it had before it. In those circumstances the tribunal adjourned the application for a period of 7 days in order to enable the Applicant to supplement and amplify the medical evidence, so that the tribunal might have before it a fuller account of the Applicant's medical evidence in reaching the difficult decision before it.
7 When the application came before the tribunal again today, the Applicant's representative submitted a further medical report, dated 21 June 1996, from the Applicant's general practitioner. That report reviewed the relevant history and stated that the Applicant was originally treated with non-pharmacological methods. However, those methods proved ineffective and the Applicant was started on anti-depressants on 23 May 1996. Because of a deterioration in the Applicant's clinical status she was referred for immediate assessment to the mental health unit on 30 May 1996. According to the Applicant's doctor, the psychologist [ sic ] who assessed her at the clinic stated:
"I do not think it is advisable for her to attend the court case for now."
The Applicant's general practitioner stated that the Applicant was started on a different anti depressant the effects of which are not expected to be known for 6 weeks. The report continues:
"I saw her (the Applicant) again to reassess her on 18.6.96 and in my opinion she will not be fit for resumption of the court case before September. There has been little improvement, and given that the anti-depressants will take some time to be effective it is obvious there is a considerable progress to be made for her to be in any fit state to attend court and to be able to deal with this effectively. I would therefore request that the hearings are postponed until September."
8 In considering this application we have, of course, to pay the greatest possible attention to the opinion of the Applicant's general practitioner. The general practitioner has stated in terms that the Applicant will not be fit for resumption of the case before September. Unfortunately, however, we have also to consider a number of other matters. The first matter which we have to take into consideration is that some of the issues with which the tribunal is concerned in these applications took place many years ago. If the case is postponed, it is unlikely that it will come to trial for at least another year. If that happens, then tribunal will take place some 7 years after the events with which the proceedings are concerned.9 We also think it relevant that the school where the Applicant works is a failing school. The proceedings with which we are concerned have clearly engendered considerable acrimony and the smooth operation of the school may be expected to be seriously disrupted until this dispute has been resolved. We have been told, and it is not been disputed, that the Applicant has made serious allegations concerning the good faith of the Director of Education and that those allegations have been widely circulated. It seems to us that the Director of Education is entitled, in justice, to have the truth of those allegations decided by the tribunal and that it would constitute an injustice to her and to all the others against whom allegations have been made for this trial to be postponed for a further long period.10 The Applicant's representative has informed us that the Applicant is to be kept free of stress. We note, that in the week since we first considered this application, the Applicant has put her signature to documents dealing with issues consequent upon any decision to adjourn and containing observations on the Respondents' suggested chronology and statement of facts. Although we accept that those documents were composed by those advising the Applicant, we are satisfied that the Applicant has been able during the course of the last week to direct her mind effectively to the issues in this case.11 The two reports from the Applicant's general practitioner give conflicting predictions of the date when the Applicant may be expected to be fit to deal with this case. The Applicant's medical evidence is disappointing in terms of setting out reasons for the prognosis which has been given. We bear in mind that the Applicant in this case is extremely well advised by a group of people who clearly have very great familiarity with the issues in this case.12 Although, as we have said, we have paid the closest possible attention to the medical evidence that has been put forward and the submissions which have been advanced, the conclusion which we have reached is that the interests of justice require us to refuse the application for a postponement. We take the view that, if we were to adjourn this case, it would for all practical purposes be impossible to achieve a fair trial of the issues in dispute. We think that, with the help of her skilled and knowledgeable advisers, the Applicant will be able to conduct this case effectively, even in her state of health, and the conclusion which we have therefore reached is that we must refuse the application."The appellant says that that decision was unjust. It is said that once there is a bona fide case of ill health the matter should as a matter of law be postponed.It is further contended that it is contrary to the procedure set forth in the Industrial Tribunal guide notes which raise a reasonable expectation that where cases of illness occurred a postponement would be granted. The wording of those notes reads:
"We will normally only postpone the hearing if something serious happens to prevent the attendance of someone whose absence would put either side at a serious or unfair disadvantage."
Further the appellant says that in exercising its discretion the Industrial Tribunal took into account irrelevant matters and/or insufficient relevant matters which should not have been taken into account. Examples given are the fact the tribunal considered it relevant that matters had occurred many years ago; that the adjournment would cause delay without properly considering that the delay was not the fault of the appellant; that it would cause inconvenience to the parties including the respondents; that the appellant had put her signature to documents and that the appellant had been able to direct her mind effectively to the issues of the case. Further, no sufficient weight was given to the fact that the appellant was seriously ill and that she could not attend or participate in the hearing; that her absence would make it extremely difficult if not impossible to present her case in an effective manner; that she was not responsible for the fact that there had been delay from 1992, nor was she responsible for her present illness.The appeal further propounds the proposition that the abandonment of a 25 day trial was allowed to bulk too large in the consideration of the tribunal in deciding to refuse the adjournment. Criticisms are also made of some of the conclusions which the tribunal reached. For example, that there was wide circulation of the allegations in the four cases. However, as it appears that no less than 12 people, bodies or organisation were informed of the nature of the allegations, the tribunal appears to have been correct in that.Finally, it is said that the tribunal concluded in an arbitrary and unreasonable manner that the appellant's four cases could be effectively conducted even her absence.Sir Gavin Laird found that bearing in mind the nature of the allegations, it was impossible to say that the proceedings could be conducted in the absence of the appellant. The very nature of the allegations required her presence. First, to give evidence in chief and under cross-examination. Secondly, that in a case of this size where matters could arise unexpectedly even during the evidence being given by witnesses appearing on behalf of the appellant, it was necessary that she should be present in order to give instructions to those advising her. Thirdly, during the period when evidence was being given on behalf of the respondents, it was even more necessary that the appellant should be available to give instructions and information to those who were putting forward her case. Furthermore, although it is appreciated that mass disruption is caused where a 25 day "slot" in the Industrial Tribunal's list has to be vacated, and while it is equally obvious that it would be some time before another "slot" would appear, nevertheless, the medical evidence indicated that there was a reasonable prospect that the appellant would be able to take part in the case fully by September. Even if this was not a cast iron prognosis, it would have been reasonable to adjourn the case for whatever period of time was necessary to obtain the "slot" of a necessary length and then to hold a directions hearing in September to monitor the progress of the appellant's medical state.It must have been obvious that the effect of the refusal of the adjournment would have been that the hearing would have continued without the presence of either the appellant or anyone on her behalf. She was effectively shut out, her case was not heard, the respondents' case was accepted and the decision made against her when she was disabled. She was denied the chance of putting forward those matters which she had been urging for some four years, the result was that an injustice was done to the appellant by such a refusal of an adjournment.The majority of this tribunal take the opposite view. We start from the premise that an Industrial Tribunal is master of its own procedure. The tribunal has a complete and wide discretion whether to postpone the hearing of an application, pursuant to r. 13(7) of the Industrial Tribunal (Constitution etc.) Regulations 1993 . This principle is derived from Carter v Credit Change Ltd [1979] IRLR 361 , where the Court of Appeal said that the tribunal's discretion is to do what it thinks best in the interests of justice.Further, this tribunal should not interfere in interlocutory decisions of the Industrial Tribunal where it is a matter of discretion unless as Arnold J. said in Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778 , unless an improper matter has been taken into account, an essential relevant consideration has not been taken into account or the tribunal has reached a perverse decision.The general approach an interlocutory appeals was indicated of Browne-Wilkinson J in Mansell Ltd v Curry [1983] ICR 798 , where it was indicated that appeals against interlocutory decisions of Industrial Tribunals whether or not to grant an adjournment are to be deplored.The weight that an Industrial Tribunal gives to any particular factor is a matter for that tribunal. Save where the importance being given is so out of proportion to reasonable expectations that it must be a perverse finding. This tribunal should not dissect with a sharp scalpel the details of every reason given by the Industrial Tribunal. However, it is clear that the tribunal paid careful attention particularly to the medical reports and also to a variety of aspects which led the tribunal to conclude that the case could not be fairly tried if there was an adjournment. That was a conclusion they were entitled to reach.Frequently the fact that a principal participant, whether litigant or witness, is unavailable because of ill health is a dominant factor in deciding whether an adjournment should be granted. In this case, there were a number of other factors not least the need for a person whose bona fides and competence had been attacked, to be given the opportunity at the earliest stage to clear her name. The tribunal was therefore placed in a more difficult position that in the normal run of cases, because the balancing operation required the consideration of the effective postponement not only upon the appellant but also on others against whom she was litigating.Most of the objections taken by the appellant revolve around accusations that the tribunal did not ascribe the weight and importance to factors in favour of an adjournment which the appellant believes ought to have been so ascribed.The weight being given to any particular factor is essentially a matter for the tribunal and it is not for this tribunal to "second guess" the Industrial Tribunal.It needs emphasising that one of the objectives of the legislation which created Industrial Tribunals was that justice should be swift. It is therefore not surprising that more weight is given to the problems of delay than would be the case where application for an adjournment in the County Court or the High Court. Where the parties are still in an employer/employee relationship still delay is even less desirable.The majority find that there is nothing in this appeal and it is dismissed.