Hogan v. Cambridgeshire County Council [1999] UKEAT 19_99_1301

EAT

Hogan v. Cambridgeshire County Council

[1999] UKEAT 19_99_1301 · 1999-01-13

JUDGE C SMITH :

This is an interlocutory appeal by Mrs Hogan against an order made by the Chairman of the Industrial Tribunal fixing the hearing of Mrs Hogan's complaint for unfair dismissal before the Industrial Tribunal on 18 to 20 January 1999 next. The Chairman had to deal with an Application by Mrs Hogan to vacate that hearing date on the basis that she had, apparently, an outstanding appeal to the Court of Appeal in the sense that, as we understand the matter, the facts are that she applied for leave to appeal to the Court of Appeal by Notice dated on or about 4 January 1999. It must be pointed out that her Application for leave to Appeal to the Court of Appeal, is very considerably out of time so she will have to try and persuade the Court of Appeal not only that she should have leave to appeal to them against a decision of EAT - when such leave has been already refused by the President - but she has also got to persuade the Court of Appeal that she should have such leave substantially out of time. That is the state of play before the Court of Appeal.

The way the Chairman dealt with the matter was by his letter of 6 January 1999 when he stated as follows (and this is the substantive part of the letter of decision):

"The case is to proceed as listed. An appeal does not, of itself, stay proceedings."

Now, we should first of all state that although, of course, unfortunately the Appellant cannot attend today - and has courteously told us she is not going to attend today - we have considered the documents she has placed before us. We have also had the benefit of hearing a very helpful submission from Mr John Horan, of Counsel, on behalf of the Respondents.

It is helpful to remind ourselves that, sitting as the Employment Appeal Tribunal, our powers are very limited with regard to interfering with a Tribunal's determination over such a matter as this, i.e. as to whether or not a date fixed for a hearing of Tribunal proceedings should be vacated or not. Counsel, Mr Horan, has very helpfully set out the law in the document which he has prepared for us, under the heading 'Respondents' Key Points for the Hearing of 13 January 1999', at page 4, and we agree with the law as there set out, at paragraph 2 of that document. Also, as Chairman of the EAT, I have carefully referred myself to the relevant passage in Harvey, which is at T 1691 and 1692 under the heading, Interlocutory Appeals, and in particular the principles laid down by Wood J, then the President, in the case of Adams & Raynor v University of West Sussex County Council [1990]IRLR 215. It is quite clear that we can only interfere with a decision of the Chairman of this kind if the Chairman has taken into account some irrelevant consideration, or failed to consider a relevant consideration, or has acted perversely. In other words the decision has to be Wednesbury : unreasonable or perverse before we can possibly interfere.

That is why it is important just to say a word or two about what plainly underscored the decision and, we find, there can be no criticism at all for it being shortly expressed. It is perfectly obvious, to us, that the Chairman had in mind the whole background to this matter, which is helpfully summarised for us in the chronology that has been prepared for us by Mr Horan today. "Looking at the matter generally", as Counsel puts it, really in a very understated way, in paragraph 2 of the chronology:

"The history of legal proceedings between the Appellant and the Respondent is complex. The Appellant having pursued four sets of highly contentious Employment Tribunal proceedings against the Respondent and numerous appeals."

That is certainly quite clearly the position; it is an understatement of the position if anything. It does appear to us, with great respect to the Appellant and bearing in mind, of course, we have not had the benefit of hearing her, that to some extent there is a campaign being waged by the Appellant against the Cambridgeshire County Council who, of course, have to fund the matter - in part, at any rate - via their rate payers.

To condescend to rather more detail, it is important that we should make clear that we have an understanding of the nature of the putative appeal to the Court of Appeal which is presently underway. (Although, as we remarked already, it is very much out of time.) That arises - putting the matter shortly, without necessarily exact attention to precise detail, from the fact that in about February 1998, standard directions were given - by the same Chairman of the Industrial Tribunal in relation to this particular matter - standard directions were given to which we have been referred. At the same time the Chairman carefully rejected a great number of alternative directions which were put forward, some of which were of a very unusual nature, which were made by the present Appellant. Each of those was rejected. There were numerous points that were taken and they were all dealt with carefully by the Chairman of the Bury Industrial Tribunal.

There followed what we must characterise as the inevitable appeal. From the documents relating to the Notice of Appeal it appears that all the points, every single point, by way of both directions made and those refused, was going to be under challenge. So there were about 20 points that were going to be taken before the EAT. That appeal came before this Employment Tribunal, namely, His Honour Judge Peter Clark, sitting with Mr Crosby and Mr Daly. Fortunately we have got the benefit of the transcript of the very clear judgment given by the EAT on 7 October 1998. That document is quite self-explanatory but we should just say that it is quite clear that, although there were all these 20 points, in fact on appeal only two points were taken; the others must be taken to have all been totally abandoned.

The two points that were taken were, first of all; a challenge to the Chairman's observation in paragraph 2 of his reasons, dated 12 February 1998. It appears that a particular case of the Appellant's had been struck out for want of prosecution, and there was a submission that that striking out order had been set aside by a different Chairman, Mr Crowe. In fact, however, as the EAT pointed out, the strike out order remained in effect despite Mr Crowe's order, which did not bear upon it, and there had been no appeal against the strike out order. Therefore, the EAT concluded that in their judgment Mr Mitchell, the Chairman, was entitled to refuse the Appellant's Application for that particular case to be set down, it having been struck out on 14 July 1997 and that order not having been altered in anyway. So that was that point.

Then there was another point which the learned Judge giving the judgment in the EAT described as the main point in the appeal and that related to the question as to whether there should be a witness order in respect of Mr Bill Smith, the income manager in the Cambridgeshire County Council. That is all dealt with quite clearly by the EAT. The County Council gave clear and unequivocal undertakings, in open court, that there was no question of the Appellant being under any kind of personal liability in respect of various funds which the Council had the duty of administering for elderly people who were in their care, to which her name had been allocated as the person responsible for administering the funds. The County Council made quite clear that there could be no question of personal liability and, indeed, they do note, as Mr Horan said today - again, with respect to the Appellant - that it was somewhat mischievous to seek to construe the relevant documentation as conceivably giving rise to any such personal liability. There was then a suggestion, argued out before His Honour Judge Clark and Members, to the effect that Mr Bill Smith's evidence might go to the issue of capability. But the simple fact is, as the EAT succinctly put it in their judgment, that the question of the Appellant's capability is not an issue in the cases pleaded. That is perfectly clear from consideration of the Originating Application and the Notice of Appearance.

The issue in the proceedings, which are being set down for 18,19 and 20 January, is simply whether or not the County Council can establish - probably the burden being upon them although it is not really for us to express any concluded view on that - that the Appellant's contract of employment has been frustrated by operation of law in the very precise respects in which that allegation has been pleaded. The issue of capability simply does not arise.

It was in those circumstances that the Appellant's appeal was dismissed by the EAT. She then applied for leave to appeal: We believe that matter was dealt with by the President of this Tribunal in, we think, November. He refused leave to appeal. It was not until about 4 January 1999 that the Appellant sought to move the Court of Appeal in the way in which we have explained earlier in this judgment.

Now, in those circumstances, in our judgment, having taken into account everything that the Appellant has sought to place before us by way of documentation, we cannot for a moment categorise the decision of the Chairman as expressed in his letter of 6 January 1999 as being in any way perverse or as being in anyway a decision which either failed to take account of a relevant matter or took into account any irrelevant matter. On the contrary, we consider that the decision was plainly right. We take the view that the true, underlying motive here is to try and put off this hearing date. We do not know why the Appellant is apparently taking that line. We do not wish to speculate. But that does seem to be the only explanation, and we take into account, particularly, of course, the fact that there may ultimately be some kind of successful application to the Court of Appeal. We are very conscious of the fact that we would not wish, by any decision of ours, in any to way pre-empt any hearing before the Court of Appeal. We have had to take that very carefully into account. We agree with the Chairman that an appeal does not of itself stay proceedings and if an appeal does not of itself stay proceedings, nor certainly can an Application for leave to appeal being made well out of time possibly have any such effect.

The way in which we approach this last particular point - as to the position of the Court of Appeal - is this; that, if the Appellant feels strongly about the matter, there is no reason at all why she should not, the moment she is informed that her appeal is being dismissed today - I have no doubt she can be informed today of that by the officers of this Employment Appeal Tribunal - there is nothing to stop her moving the Court of Appeal in order to ask them to stay the proceedings before the Industrial Tribunal and, in that way, the Court of Appeal can become seised of the matter before the die is cast by the hearing commencing on 18 January.

So, for those reasons, we have concluded that there is absolutely no substance either in law or in fact in this appeal and it will have to stand dismissed.

Costs

Counsel for the Respondent has applied for a contribution towards the costs. We have considered whether this is an exceptional case where we should order the Appellant to make a contribution towards the Respondent's costs of the appeal. We note in particular that His Honour Judge Clark warned the Appellant that, despite her very limited means, she might not be immune from a costs order if she pursued appeals to the EAT which were improper in the sense of being unnecessary, unreasonably, vexatious or frivolous. We regret that we have unanimously concluded that this appeal is both improper and vexatious since it had absolutely no merit and we find it to have been motivated by an improper desire to put off the hearing of this claim before the Tribunal. Accordingly, having regard to the Appellant's limited means as described in the earlier judgment of His Honour Judge Clark, we order the Appellant to contribute £100 towards the Respondent's costs of the appeal.