Williams v Inspector Of Taxes & Ors [1998] UKEAT 811_97_2011

EAT
Williams v Inspector Of Taxes & Ors
[1998] UKEAT 811_97_2011 · 1998-11-20
MR JUSTICE LINDSAY : We have before us as a full hearing the appeal by Mrs D. Williams in the matter D. Williams against The Commissioner of Inland Revenue and Celia Woodward.The appeal is against a decision at London (South) under the chairmanship of Mr D. Booth at which there were two Members sitting with Mr Booth; Miss J.G. Wright and Mr A. McGuiness. There was a hearing of one day on 19 November 1996 and the decision was promulgated on 28 November 1996. The result was this:
"The unanimous decision of the Tribunal is that these applications are dismissed."
The case cannot be understood without some examination of the procedural background. On 17 January 1996 the Industrial Tribunal received an IT1 from Mrs Williams that was given the number 7467/96. It was an IT1 alleging constant harassment and discrimination. Mrs Williams said that it was such that it prevented her returning to work. She was then on a career break. She recognised in that IT1 that her application might be out of time.On 16 April 1996, presented on 17 April 1996, there was a second IT1 from Mrs Williams addressed this time to Miss Woodward, Mr Barnes and "Inspector of Taxes". This second one concerned discrimination and victimisation under the Race Relations Act 1976 and here the complaint was that an internal Commissioners of Inland Revenue investigation into her complaint, which had been held earlier, and which had held there had been no evidence of discrimination found or harassment, was a sham. Mrs Williams alleges that the failure properly to investigate her complaint was itself a form of discrimination. That second one was given the number 24997/96.Then on 7 May 1996 there was a hearing and that first IT1, 7467/96, was dismissed. So that thereafter it falls out of the picture altogether, but the second IT1 was subject to a ruling that a preliminary hearing was necessary to deal with a point that had been raised. This hearing of 7 May was in front of Mr D. Booth, Chairman sitting alone, and his decision was:
"I therefore decided that this issue should be tested at a preliminary hearing before a full Tribunal to determine the following issue .."
And then there is an inset giving the issue that was to be raised:
"Whether the Applicant had failed to co-operate in an enquiry into her allegations of sexual harassment to such an extent that she brought the dismissal of her complaints upon herself and therefore any proceedings claiming that dismissal of her complaint to be an act of discrimination lack any prospect of success and are therefore scandalous, frivolous or vexatious."
That was a point which the Respondent's solicitor at that hearing of 7 May had asked to be raised and which, after argument, emerged as to be raised.There was no appeal against that decision of 7 May 1996 and it is to be noted that it was a decision of Mr Booth as Chairman. On 22 May 1996 notice was given to Mrs Williams of a date for the hearing of that preliminary point, the point that had been identified in the decision of 7 May. Then on 24 June 1996, which was the date which had been referred to in the notice, a hearing took place. It was before Mr Booth and two Members and it ruled in Mrs Williams' favour that the claim 24997/96 should be allowed to proceed. The claim against Mr Barnes was struck out. There was no appeal against that decision.The Industrial Tribunal on 24 June indicated that it would reserve the substantive hearing to the same three members, then giving an indication in their decisions of that day that as they had spent some six hours hearing evidence and listening to the case it was convenient and economical that they should hear the substantive appeal.Mr Harry, who appears today for Mrs Williams and who appeared for Mrs Williams on that day, says that in fact it was agreed that the same three should hear the substantive hearing. In the Decision it is given as a matter of decision rather than agreement, but nothing would seem to turn on that. The Industrial Tribunal were on 24 June to some extent critical of Mrs Williams but, for all that, they did allow the case to proceed to a full hearing.On 15 November 1996 there were amended particulars of claim in 24997/96. No attention has been paid to them today. They seem to relate in no way at all to questions of racial discrimination, but they were the particulars of claim that were filed on the Applicant's part.On 19 November 1996 the substantive hearing before the Industrial Tribunal took place. Mr Harry did not then appear for Mrs Williams but Mrs Williams had the fairly unusual luxury of having two Counsel. The hearing took place in front of the same three members who had heard the application on 24 June, that having been arranged, as I have indicated earlier, and having been known to the parties from 24 June. On 28 November 1996 the decision was promulgated. We have already read what the decision was. Mrs Williams' application was dismissed.On 7 January 1997 there was Mrs Williams' original Notice of Appeal and on 7 July 1997 Mrs Williams swore an affidavit alleging bias and prejudice on the part of the Chairman, Mr Booth. On 24 July 1997 we had provided to the Employment Appeal Tribunal a note from Mr Booth and what it said was this:
"1. I worked for the Inland Revenue from 1958 to 1961 in a junior position. This was only known to Mrs Williams because I declared it. I invited representations. None were forthcoming.
2. So far as the evidence of Miss Woodward is concerned I can only comment that this was a unanimous decision of a very experienced tribunal."On 6 February 1998 there was the now inevitable preliminary hearing at the Employment Appeal Tribunal and two points only were permitted to go to the full hearing, in other words to come up to us. One of them can briefly be described as the rule 7 (9) point (and I will come on to that) and the second point was actual or apparent bias on Mr Booth's part. Those are the only two points that were allowed to go forward.On 6 February 1998 there was an amended Notice of Appeal that took those two points and they are the only two points properly before us. So first I can deal briefly with the rule 7(9) point. There is nothing in it. Mr Harry conceded, and in our view rightly conceded, the point, but it might be appropriate briefly to explain what the point was. The Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 Schedule 1, paragraph 7, headed "Pre-hearing review", describes what a pre-hearing review is and then at subparagraph (9) says:
"No member of a tribunal which has conducted a pre-hearing review shall be a member of the tribunal at the hearing of the originating application."
Mrs Williams' case had been proceeding on the basis that the persons who had heard the matter on 24 June therefore should not have heard it on 19 November. But that is a confusion.

(d) :

"(2) A tribunal may - (d) subject to paragraph (3), at any stage of the proceedings, order to be struck out or amended any originating application or notice of appearance, or anything in such application or notice of appearance, on the grounds that it is scandalous, frivolous or vexatious."
The notice of hearing of 22 May 1996 refers to the Industrial Tribunal decision of 7 May, point 3; that refers to the point that I read earlier, namely whether the Applicant had failed to co-operate in an enquiry and so on, to such an extent that her complaint should be struck out as scandalous, frivolous or vexatious. Plainly consideration of that point is a case falling within rule 13 (2) (d) and is not a pre-hearing review within paragraph 7 (1). The Employment Appeal Tribunal had, indeed, been so informed by the Industrial Tribunal by a letter of 17 September 1998.In the case of rule 13 (2) (d) cases there is no equivalent of rule 7 (9). So that first point is not only conceded (as we have said) by Mr Harry, but rightly conceded, and Ms Gill for the Respondent has equally argued that not only has it been conceded, but rightly conceded. It is in fact unarguable.That leaves only bias, real or apparent, and on bias it is necessary first to see what is required of an Appellant who alleges bias in relation to the conduct at the Industrial Tribunal. That is the subject of the Practice Direction (Employment Appeal Tribunal Procedure) 1996 to be found at paragraph 5048 of the current Butterworths Employment Law Handbook:
"1. A party who intends to complain about the conduct of the Industrial Tribunal (for example bias, or improper conduct by the Chairman or lay members or procedural irregularities at the hearing) must include in the Notice of Appeal full and sufficient particulars of the complaint."
And it goes on at 3:
"3. Such directions will normally include the swearing and filing of affidavits by the complainant or his or her advisers or other witnesses or by the Respondent or his or her advisers or any others who can give relevant evidence as to the facts which form the basis of the complaint and the provision of further particulars of the matters relied on."
It is not open to an Appellant loosely to complain or to elaborate in ways that have not properly been put by way of particulars and by way of evidence. We must not hear matters other than those which are properly put before us in compliance with the Practice Direction, but we do have an affidavit from Mrs Williams. It will not be necessary to read all of it, but there are some parts that should be read and, speaking of the earlier hearings, she says:
"2. ... I then put in an Originating Application using the services of a McKenzie Friend by the name of Mr Erol Harry [ he is the Mr Harry who has appeared before us today].
3. From the time that the Chairman met Mr Harry he displayed contempt and bias towards him and it was my own understanding that this feeling of contempt and bias towards Mr Harry was transferred on to me. I verily believe that this was due to the fact that Mr Booth, the Chairman had been previously employed by the Inland Revenue and this was his own way of showing gratitude. ...."It is to be remembered that Mr Harry did not appear at the substantive hearing on 19 November 1996. He appeared for Mrs Williams only on 24 June 1996. It is hard to regard the hearing of 24 June 1996 as an occasion indicative of bias on the Chairman's part against Mrs Williams because, of course, she largely succeeded on that day. Her complaint was allowed to go forward, but if bias had been apparent when Mr Harry did appear for Mrs Williams on 24 June, then she could have appealed against the decision to the extent that it went against her, for example, in dismissing the case of Mr Barnes from further consideration, but that was not done. Moreover, she could have objected to Mr Booth being on the panel that would hear the substantive hearing. It was indicated that the substantive hearing would be in front of the same people and that seems to have been agreed and certainly was provided for in the order. So it was quite plain that, unless something was done, the same panel would hear the substantive matter as had heard the 24 June matter and yet there was no complaint at that stage. Going on, still on the hearing of 24 June 1996, Mrs Williams says this:
"4. During the course of the earlier proceedings when I was represented by Mr Harry, Mr Booth commented on one occasion that Mr Harry 'had come to bash the Revenue'. On another occasion he had said 'my colleagues and I will always be happy to hear cases involving the Revenue'."
The context of those remarks is not explained further than that by Mrs Williams and it is not for us to imagine what it was. The language could be that of jocularity, if anything. An expression such as "bash the Revenue" would tend to suggest something humorous was going on and speaking of "my colleagues and I will always be happy to hear cases involving the Revenue", - well, given that the Revenue is more commonly a Respondent than an Applicant, it would seem to suggest a happiness to hear cases against the Revenue, involving the Revenue as a Respondent. It is hard to see how it is indicative of anything other than a joke. But again, let us suppose that those remarks could properly be taken, in their context, whatever the context was, as indicative of some form of prejudice, real or apparent. Again, Mrs Williams could have appealed or could have objected to Mr Booth being involved in any further hearing of the case and neither of those things was done.Then Mrs Williams complains in her paragraph 6 as follows:
"6. Mr Booth, the Chairman should have known better that his association with my case was tantamount to a conflict of interest and he should not have left himself wide open to challenge by the Centre and he should have discharged himself from the proceedings rather than wait to be asked to confirm or deny that he had previously been employed by the Inland Revenue."
We have asked both parties before us to amplify the facts a little. It would seem that at the substantive hearing, on the final day, Mrs Williams had by then had some suspicion or some guess that Mr Booth had, at some stage or another, had some connection with the Revenue and through her Counsel then appearing invited him to say whether or not he did have or had had some connection with the Revenue. It was at that stage that he announced, as we earlier read, that he had worked for the Inland Revenue from 1958 to 1961 in a junior position and it is the case that until he came out with that Mrs Williams had no means of knowing that he had, indeed, been an employee of the Revenue for those years and at that distance long ago. It is common ground (and I am looking at the amended Notice of Appeal) where it says:
"For the avoidance of doubt, it is conceded that the Chairman, having disclosed the said information on 19 November 1996, gave the Appellant an opportunity to object to his continuing to hear the matter, which opportunity was declined."
So that the sequence of events is that there was an invitation by Mrs Williams' advisers to the Chairman to indicate whether he had had, or did still have, some connection with the Revenue, he comes out with that answer. He asks therefore whether representations were needed to be made to him. Was it wished that he should withdraw? It was indicated to him that he need not withdraw. To that extent we have had the facts amplified before us. So Mr Booth volunteered ultimately - perhaps volunteered is too strong a word - the information that he had some 37 years ago, as a junior employee, been employed by the Inland Revenue. He acted properly in disclosing that fact.The complaint that Mr Harry makes is that Mr Booth really should have indicated that and made it quite plain sooner, without having to wait until an answer was inevitable, namely when he was questioned on the point. We cannot agree that that is the case. His connection is so remote that he cannot fairly be criticised for not mentioning it earlier. Mr Harry says that the very fact that the Chairman responded by saying "Do you wish me to withdraw?" is, itself, indicative of his recognising a high degree of conflict in his position. I do not think that follows at all. He might simply have been rather more generous than need have been the case, giving Mrs Williams the opportunity to require some other tribunal to hear the matter, an opportunity which she did not take.We have had drawn to our attention by both sides, the case of University College of Swansea v Cornelius [1988] ICR 735 in the Employment Appeal Tribunal where, at page 740, and talking about bias in judicial proceedings the EAT said:
".... It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as he could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And If he does sit, his decision cannot stand. ...."
It may be in the light of a later case also cited to us, Regina v Gough [1993] AC 646 in the House of Lords, that that reference to "real likelihood" should instead be "real danger" but, whichever it is, it seems to us that right-thinking persons, knowing of that connection with the Revenue which Mr Booth had enjoyed long ago, would not feel that there was a real likelihood of bias on his part. It is not a thing that he needed to come out with, although, of course, once the subject was raised, it was entirely right for him to give the answer that he did give. His written note to us could, to some extent, be criticised in the sense that it makes it look as if his response was wholly voluntary, which it was not in the sense that the question was put to him by those advisers then appearing for Mrs Williams, but, for all that, his response is true and it was proper that he should have made it.Mr Harry has put his case on bias extremely high. We have heard references to Mr Booth being "a judge in his own cause". We have had references to conspiracy. One has to be a little more realistic in looking at the matters particularised in the affidavit. We do not feel able to say that there was here real or apparent bias.In practical terms therefore we have now dealt with the only two grounds that Mrs Williams was allowed, by reason of the decision at the preliminary hearing to take further, but there is one further point and that is that in her affidavit Mrs Williams says this at paragraph 7:
"7. A further aspect of the case which I recognise as bias and perversity concerned the evidence of Miss Celia Woodward to the effect that I did not co-operate. Rather than weigh the evidence objectively alongside the full circumstances of the telephone conversations between us months after the start of the so-called investigation, the Chairman took the view that Miss Woodward's words and conduct were unimpeachable and that she was right to say that I did not co-operate. No evidence was adduced by the other side that I did not co-operate."
It is to be remembered that the decision of the Industrial Tribunal was unanimous. In other words, it was not just Mr Booth but all three who came to the same view and there is no allegation or suggestion that anyone but Mr Booth was prejudiced or biased, and yet there is a conclusion of all three of them together. It is, of course, for the Industrial Tribunal to determine whose evidence is to be preferred. They plainly preferred the evidence of Miss Celia Woodward. Paragraph 7 does give some support for a view that Mrs Williams too readily concludes that a decision against her must have been, ipso facto , a prejudiced decision, but we do not need to deal with that. We have dealt with the claims that she has particularised. The case as to bias, real or apparent and prejudice, real or apparent, fails. We must dismiss the appeal.