Hawwari v. British Broadcasting Corporation & Ors [1999] UKEAT 1012_99_1509

EAT
Hawwari v. British Broadcasting Corporation & Ors
[1999] UKEAT 1012_99_1509 · 1999-09-15

JUDGE PETER CLARK :

This is an interlocutory appeal brought by Mr Hawwari, the Applicant before the London (South) Employment Appeal, against certain directions ordered by the Regional Chairman, Mrs Mason, at a directions hearing held in this case No. 600/3248/99 on 2 September 1999. We should say that this is one of some eight cases which the Appellant has brought against his current employer, the BBC. We remind ourselves that on appeal our task is not simply to reconsider the directions given below de novo; we cannot interfere with the Chairman's orders unless an error of law is made out: see Medallion Holidays Ltd v Birch [1985] ICR 578.The issues raised in this complaint were identified by the Chairman in her directions letter dated 2 September 1999 as follows:
"(1) Whether on racial grounds the Respondent unlawfully discriminated against the Applicant by not selecting him for the post of Editor On-Line thereby treating him less favourably on the grounds of his race than it treated the [successful] Egyptian candidate, contrary to sections 1(1)(a) and 4(2)(c) of the Race Relations Act 1976. [The Appellant is of Jordanian / Palestinian ethnic origin].
(2) Whether the Respondent victimised the Applicant by failing to select him for the post of On-Line Editor because of his part played in protected acts as set out on page two of the Applicant's letter of 2 August 1999.(3) The Respondent clarified that the BBC was responsible for the Acts of the first and second Respondent's and there is no issue as to vicarious liability."Before us the Appellant raises four matters on appeal. We shall deal with each in turn.The first is that in the directions letter of 2 September, at paragraph 4, it is recorded as follows:
"4 Particulars of Originating Application . It was agreed and the Chairman ordered that the Applicant shall on or before 13 September 1999 give to the Respondents with a copy to the Tribunal precise details of any alleged link(s) between the act of victimisation and each of the protected acts."
We have been shown certain particulars, which were delivered by the Appellant to the BBC on 13 September 1999, in compliance with that apparently agreed direction. Mr Hawwari's concern before us was that the BBC might take a point that those particulars were inadequate and on that basis apply to strike him out. We are assured by Miss Youngson, who appears on behalf of the BBC today, that no point is taken on the adequacy of those particulars and accordingly, the first ground of complaint in the appeal simply falls away.Secondly, the Appellant appeals against the Chairman's refusal to grant him leave to serve a Race Relations Questionnaire in the instant case out of time. In the directions letter of 2 September 1999, the ground for refusal was that the application was made too late. In a subsequent letter dated 9 September 1999, from the Tribunal to the parties, this reason appears for refusing leave to serve a questionnaire out of time. There appeared, and still appears, no reason why the Appellant did not serve the questionnaire within time.Mr Hawwari submits that there is an inconsistency between the ground put forward in the original directions letter of 2 September and that put forward in the letter of 9 September. We accept Miss Youngson's submission that at the hearing on 2 September the Chairman orally gave the reason which appears in the letter of 9 September, and we have approached this ground of appeal on that basis.The Originating Application was presented in this case on 27 May 1999. Accordingly, under the Regulations time for serving the questionnaire expired 21 days later, that is on 17 June. No questionnaire was served within time.We note particularly that on 7 June 1999 the Appellant wrote to the Tribunal in connection with one of his other cases. The heading to that letter is Case No. 600 2606 / 1999. The number 2606 is then deleted and 2941 substituted in manuscript. That letter applied for leave to serve a Race Relations Questionnaire out of time in that case. We draw attention to this letter because it is quite clear that in the letter the Appellant made it clear that he would be in a position to serve a questionnaire in case No. 2941 by Monday, 14 June 1999. It is abundantly clear from the number of cases which he has outstanding, and which he has brought against his employers, that he was well aware of the time limit. It these circumstances it is wholly unclear to us why, if he was in a position to serve a questionnaire in case No. 2941, he was not at the same time able to serve a questionnaire in the current case.The matter is further complicated by the fact that we are told, even today, that the Appellant has still not prepared a questionnaire for the instant case. It is right to say that he first made application for leave to serve a questionnaire in this case out of time by letter dated 4 July 1999. That application was not then dealt with on paper and he renewed his application by subsequent letters dated 2 August and 9 August. The matter was not determined until the directions hearing held on 2 September. Nevertheless, bearing in mind our limited jurisdiction on appeal, we are satisfied that it was open to the Chairman to hold, as appears from her letter of 9 September, that in the absence of any good reason put forward by the Appellant for not serving the questionnaire within time, she was entitled as a matter of discretion to refuse him leave. Accordingly, we reject that second ground of appeal.The third ground of appeal relates to discovery. On 23 July a standard form directions letter was sent out to the parties which provided for each party to disclose within 14 days to the other all documents on which it is intended by that party to rely at the substantive hearing. The standard form directions letter added that a formal order for discovery and inspection of documents will be made upon application by either party. Having received that letter on 2 August the Appellant wrote to the Tribunal asking for an extension of time for service of his list of documents until Monday 9 August 1999, and in addition sought specific discovery of four classes of documents there set out. He repeated that request for specific discovery by his letter dated 9 August 1999. When the matter came before the Chairman on 2 September the discovery order which was made, was in the following terms. Paragraph 8 of the letter reads:

"Documents

(1) It was agreed and the Chairman ordered that on or before 13 September each side shall give the other inspection by sending photocopies of all documents in its possession relevant to the issues(2) It was agreed and the Chairman ordered that each side should let the others know at least seven days before the hearing what documents will be relied on at the hearing(3) It was agreed that the Respondents shall prepare a common bundle of documents for use at the hearing and let the Applicant have a copy on or before 24 September."The position, as we understand it today, is that the BBC have complied with paragraph 8(1) of the directions letter in that they have provided a list and copies of the documents on which they intend to rely and that those documents include the four categories of documents in respect of which the Appellant made application for specific discovery. Conversely, it seems that he has taken it upon himself to serve a list of documents rather than providing photocopies of all the documents on that list. He has now provided some copies but not all of the documents referred to on the list.In these circumstances it seems to us that his request for specific discovery has been met and accordingly, there are no grounds for interfering with the discovery order made by the Chairman on 2 September 1999.Finally, and we think it follows from his earlier, albeit unsuccessful complaints in the appeal, he contends that there is insufficient time for him to assimilate the documents provided by the BBC to proceed to a substantive hearing on 29 September and the two following days as directed by the Chairman. He also, of course, complains that he has not had the advantage of serving a questionnaire, so that there are no answers by the BBC from which he can invite the Tribunal to infer discrimination and/or victimisation.Looking at the overall history of this matter and indeed at the time that has been made available to him until the hearing dates starting on 29 September, we can see no grounds for vacating those dates. On the contrary, it seems to us that this case ought to be got on as soon as possible in the interests of both parties and justice generally.It follows that we can see no grounds in law for interfering with the directions ordered by the Chairman and consequently this appeal is dismissed.