MR H FIFER v LONDON BOROUGH OF HACKNEY [1999] UKEAT 222_98_2807

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 222_98_2807

Case No Appeal No. EAT/222/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR H FIFERAPPELLANT

LONDON BOROUGH OF HACKNEYRESPONDENT

Before

His Honour Judge Peter Clark Mr D Chadwick Mrs M T Prosser

Date 28 July 1999

[1]APPEARANCES For the Appellant MR HODGKINSON (SOLICITOR) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME (ELAAS) JUDGE PETER CLARK: We begin with the procedural history. The Appellant, Mr Fifer, was employed by the Respondent, the London Borough of Hackney, as a Social Worker from September 1978 until 3 rd March 1995. On 16 th May 1995 he presented an Originating Application to the Employment Tribunal complaining of constructive unfair dismissal and racial discrimination. He is Jewish. The particulars of those complaints were set out in some detail. He was then represented by solicitors. He claimed that his managers, particularly Mr Gurrey and Ms Moore, had conducted a campaign designed to undermine his position, causing him stress with the result that he was forced to resign. He alleged that he was bullied and harassed by his managers because of his Jewish faith.

[2]By a Notice of Appearance dated 21 st July 1995, pleading to the particulars raised in the Originating Application, the Respondent denied the claims. On 22 nd November 1995 a Directions hearing took place before a Chairman sitting alone. By then, the Appellant had made an exhaustive application for discovery, to which the Respondent objected on the grounds of relevance and oppression. No Order was made on that occasion. A further Directions hearing was held before a Chairman, Mr J Cole, on 14 th May 1997 after an earlier hearing fixed for February 1997 was vacated on the grounds of the Appellant's medical condition. At that hearing, the Appellant indicated that he would call between 94 and 112 witnesses or more.

[3]The case was listed for a further Directions hearing on 15 th August 1997 before the same Chairman, Mr Cole. At that hearing, the Appellant produced a High Court Writ, issued by solicitors acting on his behalf against Hackney claiming £250,000 damages for personal injury suffered as a result of Hackney's negligence and breach of duty during the employment. The Respondent's representative had not seen that Writ, it not then have been served.

[4]The Appellant applied for a stay of the Employment Tribunal proceedings pending determination of those, as yet unserved, High Court proceedings. Subsequently, those proceedings were discontinued in February 1998. The Respondent had brought to that hearing three crates of service user files which formed the basis of the Appellant's earlier contested discovery application. There were 21 volumes of files.

[5]By now the Appellant's witness list had swollen to 127. Further, as part of the background to these proceedings, the Respondent produced 2 letters to employees of the Respondent, Anthony Douglas and Alison Frost, threatening libel proceedings against them. Those letters were dated 14 th October 1996. Similar letters were written to 4 other employees including Mr Gurrey and Ms Moore. The claims related back to statements made in December 1994.

[6]In these circumstances Mr Hart, for the Respondent, made 2 applications to the Chairman. First, for an order for costs if the matter were not to proceed on 15 th August. Secondly, for an order striking out the Originating Application under Rule 13(2)(e) of the Employment Tribunal Rules of Procedure 1993 on the grounds that the Appellant's conduct of the proceedings was vexatious.

[7]The Chairman adjourned the hearing for a short period in order to allow the Appellant to consider his position and to make oral representations, as required by Rule 13(3). The Appellant then asserted that the Respondent's case consisted of "libel and malicious falsehood"; that their non-compliance with the Children Act 1989 had caused his illness and that they had put two sets of children at risk. He said that he had been given assurances in that respect by 30 or 40 of his prospective witnesses, but was not prepared to name those witnesses or indicate what they proposed to say. He insisted that the Employment Tribunal proceedings remain alive indefinitely whilst the High Court proceedings took their course.

[8]Having been referred by Mr Hart to the principles in E T Marler Ltd -v- Robertson

[1974] ICR 72

, a decision of the National Industrial Relations Court (but without a copy of the report apparently being put before the Chairman) in relation to the meaning of "frivolous or vexations" in the context of costs orders, the Chairman concluded that the Appellant was conducting proceedings out of spite and a desire to harass the Respondent. That was vexatious conduct. He made the Strike-out Order. That decision, with extended reasons, was promulgated on 28 th August 1997. The Appeal

[9]Against that decision the Appellant appealed by a Notice dated 7 th October 1997. The Appeal was first listed for ex-parte preliminary hearing before a division of the Employment Appeal Tribunal presided over the President, Mr Justice Morison on 27 th March 1998. That hearing was adjourned on that day with a Direction for the parties to file affidavit evidence. That has been done and the Chairman's comments on the Appellant's affidavit received.

[10]The matter was then relisted for a restored preliminary hearing inter-partes on 27 th April 1999. On that occasion, the Appellant applied for and was granted an adjournment for the reasons set out in a Judgment which I gave on that occasion. In particular, we were concerned that because the matter had been restored for an inter-partes preliminary hearing, no representation could be arranged under the ELAAS pro bono scheme, which for insurance purposes, we learnt, extends only to representation at ex-parte hearings. There was also some debate as to whether or not the Appellant still had a live application for Legal Aid for the purpose of these proceedings. A direction was given on that occasion that the matter be relisted for an ex-parte preliminary hearing. That is the hearing before us today.

[11]Today, the Appellant is represented by Mr Hodgkinson under the ELAAS pro bono scheme. He accepts that our approach to this Appeal should be guided by the test set out by Mr Justice Wood in Adams & Rayner -v- West Sussex County Council

[1990] IRLR 315

, which is as follows. We should ask ourselves:(a) Whether the Order made by the Chairman was within the powers given to the Tribunal;

(b) Whether the Chairman exercised his discretion within guiding legal principles; and

[12]Dealing with each of those three stages, Mr Hodgkinson accepts that the Chairman had power to strike out under the provisions of Rule 13(2)(e). Secondly, it is submitted that in paragraph 20 of the Chairman's reasons for the decision under Appeal, he has watered down the test for vexatious conduct set out by Sir Hugh Griffiths in the Marler case. We are referred specifically to page 76, letter H of the Judgment, where His Lordship said:

"It is for the Tribunal to decide if the Applicant is being frivolous or vexatious and thus abuse the procedure. It is a serious finding to make against an Applicant for it will generally involve bad faith on his part and one would expect the discretion to be sparingly exercised."

[13]Mr Hodgkinson submits that that high burden has been diluted by the Chairman at paragraph 20 of his Reasons, where he refers to asking himself whether Mr Fifer was conducting his application reasonably. We cannot accept submission. The whole of the sentence in which those words appear reads as follows:

"Nevertheless, Mr Hart is entirely correct when he reminds me that I must stand back and consider objectively whether Mr Fifer is conducting his Application reasonably. And furthermore, whether his conduct of these proceedings is in any way vexatious."

[14]It seems to us that the Chairman had clearly in mind the requirement that before striking out under Rule 13(2)(e) he must find that the proceedings were being conducted vexatiously on the part of Mr Fifer.

[15]Finally, perversity. This is the nub of the Appeal. Mr Hodgkinson submits that the factual basis for the finding of vexatiousness is contained in paragraph 20 of the Reasons, where the Chairman says that "Mr Fifer has done little, if anything, to take this case forward in the direction I recommended to him carefully in May".

[16]That is a reference back to the earlier Directions hearing before the same Chairman held on 14 th May 1997. Mr Hodgkinson points to the letter dated 22 nd May 1997 which followed that hearing and in which, he submits, the Chairman made no directions with which the Appellant had failed to comply. We see the force of that submission. However, we do not think that remark in passing forms the real basis of the Chairman's decision. We think that the material finding is at paragraph 23 where the Chairman concluded that Mr Fifer had exhibited a clear spite or desire to harass the Respondent. He made that observation having earlier referred to the letters to the employees of the Respondent in October 1996, which he was told had caused not just inconvenience but to some extent, fear in those employees.

[17]We have stood back and looked at the Chairman's reasons as a whole as we are bound to do. Appellants relying on the perversity ground face a high hurdle. We cannot say that this decision, given the background to the case set out in the Chairman's Reasons, is perverse in the sense that no reasonable Chairman properly directing himself could reach the conclusion that this was a proper case in which to strike out the application on the basis that the Applicant had conducted the proceedings vexatiously.

[18]Returning to Sir High Griffiths' judgment in Marler there is a specific finding by this Chairman of bad faith on the part of the Appellant. That is, that he had exhibited a clear spite or desire to harass the Respondent. That is not the purpose of Employment Tribunal proceedings. It is an abuse of process to conduct proceedings in that manner and in these circumstances, we must dismiss this Appeal.