Garnes v London Borough Of Lambeth & Anor [1998] UKEAT 1237_97_1006

EAT
Garnes v London Borough Of Lambeth & Anor
[1998] UKEAT 1237_97_1006 · 1998-06-10

JUDGE J HULL QC :

This is an appeal to us by Mr Desmond Erskin Garnes, a gentleman who is professionally qualified as a mathematician and a school teacher. The Respondents are Lambeth Borough Council and the Governing Body of the Lilian Baylis School.In the Industrial Tribunal to whom Mr Garnes made various complaints (which I will deal with shortly in a moment) there were other Respondents, two individual Respondents, whom the Industrial Tribunal said should be removed from the proceedings. The case, so far as they were concerned, was struck out; that is to say they were removed leaving the proceedings to continue, if at all, against the Respondents I have mentioned.As I say, Mr Garnes is a professionally qualified gentleman. He came to England from, I believe, the West Indies in 1959 and it was not until 1990, when he was a man in his 50s (if I have the dates right) that he obtained his B.Sc in Mathematics; and in 1991 he obtained his Post-Graduate Certificate of Education from London University. These clearly are achievements of a considerable order on his part because mathematics is perhaps the most difficult subject to acquire in later life or one of the most difficult subjects anyway and he was, of course, now about to undertake a teaching career, again at a fairly advanced age by the standards of teachers.He applied in November 1991 to join the Lilian Baylis School, which is in Lambeth, as a probationary teacher, and he was taken on. He says that he was discriminated against in the matter of his race. He is a black man and he said that white probationers were asked to do fewer classes than he was. There may well have been other complaints, but that is one of the complaints which he makes and, therefore, throughout the period of his probation, which continued until 1994, he was subjected to discrimination and indeed, he said, victimisation. He made his first application to the Industrial Tribunal shortly before the end of his employment on 20 July 1994, when he complained of discrimination and victimisation.Then on 31 August his employment came to an end as a probationary teacher. On 25 October 1994 he made a second application to the Industrial Tribunal complaining of unfair dismissal and on 26 October 1994 he made a third application, again complaining of discrimination and victimisation.By 7 November Mr Korgaonkar, who has appeared for Mr Garnes today, was instructed by him (if that if the right word) and agreed to act for Mr Garnes in these various matters. Mr Korgaonkar if not a lawyer, but he is content to act in his spare time, he says, for those who wish to take up certain types of cases with Industrial Tribunals and that is what he was prepared to do. Thereafter, he has throughout acted for Mr Garnes. I should say that all the applications were, in due course, consolidated and there are various dates and events which can most conveniently be summarised by referring to the Decision of the Industrial Tribunal which is appealed from.There are one or two points which I would emphasise on behalf of all of us. The first is that we are a Tribunal of law alone. Parliament when it set up the Employment Appeal Tribunal stated expressly in the statute that we were to have jurisdiction as a court of law only. We cannot, unlike the Court of Appeal or Crown Courts hearing appeals, go into facts and make findings of fact ourselves. We have to rely on the findings of fact made by the Industrial Tribunal and we can only reverse or interfere with those findings if there is a point of law on which the Industrial Tribunal has made an error.The second point is that this case, as with all appeals, is in our list at this stage for a Preliminary Hearing, to see whether we can find (with, of course, Mr Korgaonkar's assistance) any point of law which would enable us to entertain the case. By any such point of law I mean, of course, an arguable point of law. We do not have to be satisfied that the appeal is likely to succeed or anything of that sort, so long as we are satisfied that there is an arguable point of law. I am now going to refer to the decision of the Tribunal because it is the convenient place where a great deal of the history of the matter is set out.The Industrial Tribunal in this case reached a decision on 28 May 1997 that the case should be struck out as frivolous and vexatious; that it had been conducted, they said, in an oppressive, frivolous way and they not merely struck out all the applications, but made an order for costs against the Applicant, Mr Garnes and it is against the orders made on that day that this appeal is brought and, in particular, it is said by Mr Korgaonkar that on this occasion the Industrial Tribunal, instead of taking the action which it did (which, of course, ended the applications effectively) should have acceded to the request which was made for an adjournment.So, as I say, to see the justice of that contention and whether it can truly be said that there is an error of law, we must look at the facts. With our assistance Mr Korgaonkar agreed in substance that the various criticisms he made, which are serious ones, of the Industrial Tribunal added up to this, that the Industrial Tribunal, in acting as it did, ignored important matters and acted in a way which was outside any legitimate and lawful exercise of their discretion.Clearly all the matters I have mentioned; a decision to strike out an application as being frivolous and vexatious; an order for costs; a refusal of an adjournment or the grant of an application for adjournment, are matters of discretion. Every court has a discretion in those and other matters of that sort and it is only if it exercises its discretion in a way which is quite plainly wrong in law that any court of appeal can interfere.So those are the preliminary matters. We are looking, as I say, for a fairly arguable point of law and a fairly arguable point of law would have to be, it seems to us, of the nature I have mentioned.The Tribunal said among other things that Mr Korgaonkar had submitted that he had not had sufficient time to consider the documents produced by the Respondents for the hearing. They had been produced only a few days before, a bundle of documents. The Respondents, of course, were making common cause. They were represented by Counsel and it was the London Borough of Lambeth and the Governing Body of the School who were represented by him.The Tribunal says that on 27 May, which was the first day of the hearing, the Tribunal asked Mr Korgaonkar how many witnesses he intended to call and he said that he intended to call ten, but could not say who they were. Then, the proceedings not having been embarked on, but the Applicant having applied for an adjournment, they adjourned the proceedings at 1.00 pm on the 27th to the 28th, in order to give the Applicant an opportunity to consider the bundle of documents and to give the Applicant the chance to say how many witnesses he was going to call and so on.The Tribunal, which was apparently not the same Tribunal as that which had been intended to hear the case but had had it transferred to it, took advantage of that short adjournment to acquaint themselves with the facts and, as I say, the Industrial Tribunal then gave a judgment which dealt with the facts.Among the matters to which the Tribunal referred there was, after certain interlocutory steps had been taken, a letter on 7 November 1994 from Mr Korgaonkar, containing among other things an application for an interlocutory hearing, which had been fixed, to be postponed on various grounds. The Tribunal wrote to the Applicant by letter dated 8 November 1994 refusing the application to postpone the interlocutory hearing and informed him that the request for the consolidation of the two cases, as they then were, would be dealt with at the interlocutory hearing; and the interlocutory hearing was held as listed on 11 November 1994. The Applicant chose not to attend. That clearly was, it seems to us, imprudent because here was a matter which was fairly complicated.I would just say again, as a generalisation, that any case in which allegations of racial discrimination or victimisation are made is important, both to the party making such allegations and to the party against whom they are made. On the one hand, of course, if such a thing has happened it is a very serious thing and must be looked into. On the other hand, if it turns out that it is a mistaken or even a malicious allegation, then it is a matter which may cause great damage to the Respondent, particularly if the Respondent is a well known institution and, therefore, it ought to be looked into as quickly and as soon as it can be and that is almost an overriding principle - that such cases must not be delayed. They take a long time. They represent an enormous concentration of effort and, indeed, money as in this case. Eventually 15 days was thought to be an appropriate time for the trial.As I say, the first interlocutory hearing that was fixed for the first two applications was on 11 November and the Applicant chose not to attend. The Chairman proceeded in his absence; ordered that the applications be consolidated and said this, and this was the direction of the Tribunal:
"... each party should provide the other party with copies of all documents which they propose to use at the hearing at least 42 days before the first hearing date. ... It is intended to list the case for hearing over 8 days during April 1995."
So there, in less than a year, the Tribunal was setting aside the better part of two weeks to hear this important and, possibly, difficult matter in which a number of witnesses would be required.Then this Tribunal set out the further history of the third application which was made and the Notice of Appearance which was received from the Respondents:
"By a letter dated the 2nd February 1995 [this is two or three months later] Mr Korgaonkar informed the tribunal that the Applicant had had to go visit abroad due to a family bereavement, and requested that any proceedings in respect of his case be held in abeyance until his return. The letter did not state when the Applicant would return, or was expected to return."
No doubt in consequence of that, the hearing did not take place in April 1995, as would have been hoped.The Applicant wrote on 30 March 1995, saying that he was now back in England. It is interesting to look at a letter which was attached, sent by the Applicant to the Respondent:
"The solicitor [that is for the Respondents] makes a gratuitous reference in line 4 of the third paragraph of the letter to my having 'failed to attend the hearing on 11th November 1994'. He is wrong. I did not fail to attend. I deliberately decided not to attend for the reason stated in my letter dated 7th November 1994 to ROIT."
That shows (if one may say so) a certain attitude. The Tribunal continued:By a letter dated 14th February 1996, the tribunal informed the Applicant that due to an administrative error he had been informed that the case would be listed for three days, when in fact it would be listed for eight days as agreed. The parties were sent a notice of hearing dated 14th March 1996, the hearing was listed to be heard from Monday 19th August 1996 for eight days."So that was a second hearing fixed for eight days. And then it goes on:
"By a letter dated the 18th March 1996 the Respondent complained that the hearing would fall during the school summer holidays and asked that it be re-listed. ... .
The Applicant wrote to the tribunal by a letter dated the 26th March 1996 in which he stated that the proposed dates were inconvenient for a number of reasons which included:1. that the key witnesses were full-time teachers and that the dates fell within their annual holidays and therefore they would not be available. ... .2. that the case would last at least ten days;3. that the Respondent had been served with a third Race Relations questionnaire ... .4. that an interlocutory hearing be listed."This was from an Applicant who, when there had been an interlocutory hearing earlier, had simply, as he put it, decided not to attend, so that directions had been given in his absence. The Tribunal goes on:
"The parties requests for postponement of the hearing on the 19th August were granted."
Then the Tribunal notified the Applicant that his request for a hearing for directions was refused and if there were still interlocutory matters to be considered specific application should be made. The parties were sent a pre-listing stencil informing them that the case would be listed during February or March 1997; this to be, of course, the third occasion.There were further objections. The Applicant wrote and, among other things, he said:

"... to list any of my cases for a hearing at this stage is somewhat premature."

So the matter dragged on. On 10 October 1996 the Applicant made a number of serious complaints and these complaints were all considered. It is right to say that various mistakes were made (in such a complicated matter it may or may not be surprising, but it is not uncommon for mistakes to be made). The Industrial Tribunals are under great pressure of work and this was a case which not only was complicated, but in which various difficulties had been created, it seems to us, rather artificially.These complaints were passed to the Regional Chairman, who directed - and this was in October - that the hearing be listed to take place on 27 May 1997 for 15 days (in other words, 3 weeks).The parties were sent the Notice of Hearing on 11 October 1996 so this was the fourth attempt to fix a hearing and the Chairman wrote as follows:
"The Chairman has directed that all outstanding cases will be dealt with together by the same Tribunal. That being so, they have been listed for a hearing starting on the 27th May 1997 for 15 days. It may be that 15 days will not be necessary but the Chairman considers that this arrangement should prevent any possibility of the hearing not being completed. The way in which the Tribunal deals with the cases will be for it to decide. ... The dates have been fixed for hearing bearing in mind the availability of Mr Korgaonkar. However, ... if you wish him to represent you, he must make himself available for 15 days from the 27th of May 1997. It is your responsibility to let him know the dates. ..."
The Respondent informed the Tribunal that the hearing fell during half term and asked the Tribunal to re-list the case for hearing during term time, if at all possible. But the Tribunal replied to the Respondent saying that the cases were very old and it was time they were heard.So that was the attitude of the Tribunal and it was (if we may say so) a very proper and understandable attitude. Here was a Tribunal which was under enormous pressures - so many of the Industrial Tribunals are - with an important and difficult and long case, which had made a fourth attempt to fix it and set aside no less than 15 days and, in those circumstances, to consult the parties' convenience any further might be thought to be going much too far. The Tribunal was determined that, at last, they must get on with the case. Then the Chairman goes on:
"By a letter dated the 29th November 1996 the Applicant notified the tribunal that Mr S. Korgaonkar would represent him in respect of his cases."
By a letter dated 15 April 1997 the Tribunal notified the parties that there would be an interlocutory hearing in this case; that was to be on 20 May:
"The Chairman will consider the Applicant's representatives application for further and better particulars and discovery. The Chairman expects the parties to attend with typed submissions on each aspect of all the Applicant's request as to why the request is made and its relevance and from the Respondents either the reply or reason for not giving the information sought. The parties should deal similarly with the request for discovery."
So all that was to be heard on 20 May and the Applicant replied on 22 April, making various complaints. He said:
"In view of the IT's delay in holding an interlocutory hearing, the substantive listed from 27th May 1997 has now become impracticable."
So here the Tribunal was being told in April that this hearing fixed for so long for May was now impracticable, having however belatedly fixed an interlocutory hearing on 20 May, when (one would have thought) it was an occasion when all difficulties could be cleared up by some vigorous action by the parties and by the Tribunal itself, saying either that applications were unnecessary or that they must be attended to right away. The Applicant went on:
"... I hereby apply for its postponement to a more suitable date when my representative can attend. ...
I do not have anybody to represent me for the interlocutory hearing on the 20th May 1997."And on 30 April the Tribunal wrote to the parties as follows. It directed that the hearing should stand for 20 May for the directions and that the substantive hearing should start on 27 May.
"... the Chairman directs that full witness statements will be read as the evidence in chief. All other matters will be dealt with at the hearing for directions. ..."
I have said that there had already been directions that there should be witness statements which is, of course, the ordinary practice of tribunals.Then there was a second letter in which the Tribunal wrote and said that if Mr Korgaonkar was not available, "It is no longer practicable to consult parties about convenient dates for hearing" (this was referring to the interlocutory hearing and the other hearing). "However at the hearing for directions you may represent yourself".Then on 13 May 1997 the Applicant wrote another letter of complaint about the conduct of the Industrial Tribunal and on 20 May 1997 the hearing for directions took place. To us it is incredible to relate, but the fact is that the Applicant chose not to attend again. Here he was, a man with many complaints about the Tribunal itself; about the way the Respondents had dealt with his various requests; about the need for further discovery; about the need for further particulars and he chose not to attend this interlocutory hearing.The Applicant's application to postpone the main hearing was refused. Further particulars and further discovery of documents were refused and the Respondents were ordered to provide inspection and, among other things, the Tribunal observed that the main hearing had been fixed for many months, as indeed it had, since 11 October the previous year. "The Respondent's solicitors undertakes to courier the main bundle to the Applicant tomorrow, 21st May" (as indeed they did). Of course, it was the duty of the Applicant to make up a bundle. He was, to use the expression, " dominus litis ", that is the Latin expression which means that he was the person in charge; he was the Applicant and therefore, on the face of it, had the responsibility for the conduct of the proceedings and it was for him to make up a bundle. He had not. He had apparently made up three provisional bundles, but not numbered them or anything like that and the Respondents, therefore, had made up a bundle of what they thought were the essential documents and that was, said the Tribunal, to be taken the next day to the Applicant, as indeed it was. Then the parties were reminded that there should be full witness statements prepared to stand as evidence in chief.The Applicant wrote again on 22 May, this being of course two days afterwards, complaining that he had not received any reply from the Tribunal, or the Industrial Tribunal's decision in connection with his applications for postponement and so on. This from a gentleman who had deliberately chosen not to attend the hearing on 20 May, complaining he has not heard from the Tribunal.The Tribunal went on as follows:
"At the commencement of the hearing on 28 May the Tribunal gave its decision that the Applicant's renewed application for further particulars was refused on the grounds they were not relevant and not probative to the issues in this case."
Thereafter, the Applicant renewed his application for an adjournment of the full hearing and that was not acceded to.Then the Tribunal sets out what happened on the 27th (I think it is mistakenly referred to as the 28th). They say that, "At the hearing the Tribunal considered that the issues for it to determine were as follows" and they set out eight issues and they set out various other decisions of the Tribunal which they reached on the first day and they say, at paragraph 17, "That the Respondent (they mean Respondents, of course) then made their application for the Applicant's final Originating Application to be struck out on the grounds that it was frivolous and vexatious" and, having considered that, the Tribunal refused that application and they wished to proceed.Then the Tribunal say that the Applicant's Representative (Mr Korgaonkar) submitted that he had attended these proceedings solely to apply for an adjournment, and to the extent that he was able to help the Tribunal he had done so. Both he and the Applicant had been placed, he said, in an impossible situation. The interlocutory hearing which took place on 11 November 1994, he said, was not attended by the Applicant because he did not have representation.Then the Tribunal went on as follows. They stopped Mr Korgaonkar going on with the chronology because they were familiar with it, or could familiarise themselves with it, and asked him to come to other points. They said that nothing had been said which gave reasons why the cases had not been prepared for this hearing. They said:
"The Tribunal having heard the submissions of the Applicant and the chronology of the proceedings considered that he had had sufficient time to prepare his case. We particularly bear in mind that he had been notified as early as November 1994 that he must prepare for a hearing by April 1995, and he had had sufficient time to prepare his recent complaint. We considered that in all of the circumstances his failure to do so was inexcusable. We considered any procedural matter or matter concerning documents could be dealt with during the course of these proceedings. Nevertheless, it was clear that due to the Applicant's insistence that he was not ready to proceed that nothing would be served by pressing ahead today. Therefore the Tribunal granted an adjournment of these proceedings to the 2nd June 1997. That being so, the Tribunal considered that the Applicant would have ample time to prepare his witness statement for the hearing and to begin to prepare the statements of his witnesses. The Applicant was warned that if he failed to prepare his own witness statements by 2 June, he risked the penalty of costs for time wasted by his failure to do so."
So that was the order which the Tribunal made on the 28th or was preparing to make and the Tribunal goes on as follows:
"Immediately after the adjournment to 2 June was announced by the Tribunal, the Applicant stated that he would not attend the hearing on the 2nd June or at any time during the present period listed for the hearing.
Thereafter the Tribunal informed the parties that it would adjourn the case for 1 hour and when it resumed it would consider whether to strike out the originating application, whether to dismiss these proceedings and consider any application for costs."That is very important because the Tribunal was then saying "If you are not going to attend at any time during these 15 days which have been set aside for this hearing, then we are going to consider, in one hour, whether to strike out the proceedings as being vexatious".The Applicant repeated that he would not attend at any time after the present and requested extended reasons for the Tribunal's refusal to grant the adjournment of the hearing. The parties were notified that a decision in this case, to include reasons for the refusal, would be given after the adjournment at 3.10 pm. The hearing resumed at 3.10 pm. At the resumed hearing the Respondent submitted that the application be struck out and dismissed and that it be awarded costs of the whole of these proceedings. The Applicant did not appear, so he made good his threat that he was not going to attend.Then the Tribunal set out the contents of Rules 13 (2) (e) and (f) and Rule 13 (3). They were obliged, as they said, to give an opportunity to show cause why the application should not be struck out. They had done so. They had said, "This is a matter we are going to consider in an hour's time. If you are not going to attend us we are not going to allow any more of this delay". And the conclusions are expressed as follows:
"Having considered the submissions of the parties, the actions of the Applicant and his representative, and the chronology of these proceedings, the Tribunal considered that the Applicant and his representative had acted vexatiously and frivolously in the manner in which they conducted these proceedings. They have failed to prepare for the hearing as directed and/or ordered by the Tribunal or at all. The Tribunal considered that the Applicant had been notified as early as 23rd November 1994 that he ought to prepare for a hearing which was due to take place in April 1995."
Then they go on to say that:
"It is not we think, for the Applicant to conduct these proceedings in as leisurely a pace as he thinks fit. It would not be fair or just to the Respondent, for the Tribunal to allow such conduct without good cause.
It is the view of the Tribunal that the Applicant by his actions has demonstrated his contempt for these proceedings. The Respondents have been seriously prejudiced by his conduct of this case, such prejudice being inherent in the manner in which the Applicant has conducted these proceedings to date. Therefore, it is the unanimous Order of the Tribunal [all three of them] that in exercise of the powers conferred on the Tribunal by Rule 13 (2 (e) of the Industrial Tribunal Rules of Procedure 1993, that this Originating Application be struck out on the grounds that the manner in which the proceedings have been conducted by and on behalf of the Applicant has been both frivolous and vexatious."They now turn to consider whether to dismiss the application itself. They had referred to Rule 9 and they said:
"Having considered all the circumstances, we dismiss these originating applications and we order that this case [of course, the consolidated case] be dismissed."
They went on to consider the question of costs under Rule 12 (3) (c) in the light of their findings and they said that it would be just and equitable to order that the Applicant should pay the costs of the proceedings of these two days (that means the 27th and 28th).
"It is the unanimous order of this Tribunal that the Applicant has conducted these proceedings unreasonably, vexatiously and disruptively within the meaning of Rule 12 (1) and therefore, the Tribunal Order that the Applicant pay to the Respondent full costs for attending the Tribunal hearing on the 27th and 28th May. Such costs to be taxed if not agreed."
These were interlocutory orders. They are a matter of discretion for the Tribunal and the Tribunal had the great advantage of seeing all the parties, hearing what each of the parties had to say to them and, of course, considering the case over a number of days in which they had the case before them.The discretion is given to the Tribunal for one reason, and one reason only, and that is so that the Tribunal can do justice to each of the parties. The Tribunal has to consider the interests, of course, of the Applicant and his witnesses; all those who are interested in his case, that his case should be properly and promptly heard. It also has to consider the equally important interests of the Respondent or Respondents, that the case should be promptly heard and justice done in case it should emerge that the application is wrong. Justice can only be done if it is done to both sides and justice can only be done, in our system which relies so heavily on the evidence of the parties and their recollections, if justice is done promptly. It is said, every day, that justice delayed is justice denied. It is for that reason that the Tribunal is given the discretion to make orders such as it made in the present case; orders for adjournment; orders for particulars; all this is directed to doing justice to the parties and doing justice to the parties at that stage is the responsibility of the Tribunal and not of this Appeal Tribunal or any other Appeal Court. That discretion is given to them so that they can discharge their responsibilities and we can interfere, as I say, only if it is shown they acted quite outside the proper realm of their discretion; took into account matters they should not have done; refused to take into account matters which they should have done and so forth. We look to see what is said.It is said that the Tribunal Chairman was impatient and interrupted. We are sorry to hear that that is so, if that is so. That is supported not only by what Mr Korgaonkar says, but by an affidavit which is attested to by three individuals, responsible trade unionists evidently, who attended. They criticised the Chairman and said that she was rude and interrupted and made it difficult for Mr Korgaonkar to put his case plainly.We would say this. We will never approve of rudeness or trying to make life difficult for an advocate if that is what happened, but when a Tribunal is confronted with such a blatant show of contempt and indifference, so many difficulties created as it seems to us by the Applicant, a certain briskness, a certain directness by the Tribunal in indicating why it is minded to exercise its discretion very adversely to the Applicant, is not merely understandable; it is indeed a valuable guide to the Applicant that he is attempting to hoe a long and difficult row. If this Industrial Tribunal had not indicated to Mr Korgaonkar and to Mr Garnes that they were coming towards the end of their tolerance of what was going on, then they would not have been doing their duty.It was quite right to warn Mr Korgaonkar in a way which could not be mistaken that the Tribunal was considering, if it was not allowed to get on with the case, taking an extreme course; and that warning was administered repeatedly and in the plainest terms. We think there is nothing unfair or improper in that and, if it appeared to Mr Korgaonkar or anybody else that it was being done offensively, then that is a source of regret, but it is not an indication of bias. We would have been very surprised if the Tribunal had had any other attitude to what was being suggested to them in all the circumstances. It was, as the Tribunal has said, as though the Applicant and his adviser were trying to ambush the proceedings and say that the proceedings were to be conducted as they wanted instead of getting on with them as justice required.It is not up to us to say whether we would have exercised our discretion in the same way if we had been put in the same place as this Tribunal. That is entirely beside the point. We might or might not have made the same orders. We might have made very different orders. That is not for us. What we do have to say is whether there is any fairly arguable point of law here; that is to say if the discretion, as exercised, is something outside any fair exercise of the discretion which the Tribunal could make. We have all considered this with Mr Korgaonkar's help and, having considered it as carefully as we can, we have come to the conclusion that there is here no fairly arguable point of law. It appears to us that all the orders made were orders well within the discretion of the Tribunal and made on grounds which seem to us to be very sound indeed and well entitling the Tribunal to make the orders.In those circumstances the appeal cannot be allowed to continue to a hearing and it falls to be dismissed now. Those are the reasons of us all.