MR E MANTE v NEWHAM COMMUNITY HEALTH SERVICES NHS TRUST [1999] UKEAT 444_99_1506

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 444_99_1506Case No Appeal No. EAT/444/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR E MANTEAPPELLANTNEWHAM COMMUNITY HEALTH SERVICES NHS TRUSTRESPONDENT
Before
His Honour Judge WilkieDate 15 June 1999
[1]APPEARANCES For the Appellant MS ADEOGUN (Solicitor) Plumstead Law Centre 105 Plumstead High Street London SE18 1SB JUDGE WILKIE QC : This is an appeal brought by Mr Mante, who was the applicant, against a decision of the Employment Tribunal to strike out his claims for unfair dismissal and racial discrimination, the Employment Tribunal having struck out his claim by exercising the power which they have under paragraph 13(2)(e) of the Employment Tribunal Rules which provide that:
"A tribunal may- … (e) subject to paragraph (3), at any stage of the proceedings, order to be struck out any originating application … on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant, … has been scandalous, frivolous or vexatious."
Paragraph (3) provides:
"Before making an order under sub-paragraph [ inter alia ] (e) of paragraph (2) the tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made; but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made."
The applicant appealed against that decision. The decision being made on 19 th January 1999 and the appeal being lodged on 3 rd March 1999. We have had the benefit of a skeleton argument prepared the Plumstead Community Law Centre and able oral argument by Ms Adeogun for Mr Mante. The application, as I have said, for a finding of unfair dismissal and for a finding of racial discrimination was in respect of employment which started on 15t h October 1991 and concluded on 13 th September 1996. Mr Mante himself submitted the claim on 13th November 1996. It is a very full application and runs for some 20 odd pages. There was a notice of appearance on 17 th December 1996 and on 8 th April 1997 the solicitors then acting for Mr Mante lodged Further and Better Particulars of the claim pursuant to an order made by the Chairman on 21st March 1997. Those further and better particulars themselves run to some 11 pages.[2]Thereafter, there were two directions letters. One dated 10 th April 1997 and another dated 28 th August 1998.[3]In their decision, at paragraph 4, the Employment Tribunal records that Mr Mante recognised that very clear directions were provided during the period preceding the 28 th August 1998 letter, that the Chairman took great pains on that occasion to point out to the parties the importance of this matter being prepared properly for trial and that the hearing of the substantive claim would begin promptly on 18 th January 1999 when it was listed to two days.[4]On 18 th January 1999 Mr Mante attended with legal representation, Mr Ollenu of Counsel. The respondents also being legally represented by Mr Brown of Counsel.[5]The Employment Tribunal records that until 2.00 p.m., on the application of Mr Mante's representative, nothing substantive occurred because the parties wished, in effect, to discuss the possibility of negotiating a settlement. As it turned out, those negotiations were not fruitful and the tribunal record at paragraph 10:
"At that time Mr Ollenu and the Applicants solicitor indicated they could take no further part in these proceedings and the Applicant would represent himself. …"
That thereafter remained the position.[6]It was at that point that the respondents made an application that Mr Mante's application be struck out pursuant to paragraph 13(2)(e) and 13(3) or the Rules. The respondents asserted that Mr Mante never had any intent to bring the matter to trial but was using it solely as a device in order to bargain a settlement.[7]It appears, as indeed would be the case, that this application did take Mr Mante by some surprise.[8]On 18 th January 1999 said that he wished for more time to consider the respondents' application. (Paragraph 16 of the decision).[9]As part of that application that Mr Brown had put before the tribunal certain, without prejudice, correspondence relating to the prospect of settlement, the most recent elements of which are summarised at paragraph 12 and relate to a letter from Mr Mante to the respondents' solicitors dated 27 th October 1998. In that letter the applicant put forward as the basis of settlement that the respondents pay him either £8 million or in default, and on another unexplained basis, the immediate sum of £5 million.[10]The tribunal record in paragraph 14 that Mr Mante acknowledged that he had complied with none of the requirements provided for by the directions letter of 28th August.[11]On 18 th January 1999 the tribunal allowed Mr Mante to make his representations at that point as best he could. He is recorded as having said that he came to the tribunal because "we believed we could negotiate", "we were hoping for a settlement" and "we came here to negotiate". The tribunal note that he did not in any way address the merits of his claim, and at that point sought to excuse himself from his failure to comply with the directions made in April 1997 and in August 1998 on the basis that he did not fully understand them. That was an assertion which ran counter to what he had been saying earlier on in the proceedings – or at least had been said on his behalf by Mr Ollenu.[12]The tribunal adjourned overnight to give Mr Mante an opportunity for reflection and a further opportunity to address the tribunal on 19 th January 1999. They indicated to him that at that point they felt disposed towards the respondents' application, in so far as it appeared that he was conducting himself frivolously in the sense that his application was not serious or sensible in content or attitude. That procedurally was an approach to the matter which the tribunal record as having been suggested to both sides and which they both accepted.[13]On 19 th January 1999, in paragraph 19 of the tribunal's decision, it is recorded that Mr Mante had indicated that he had considered the tribunal's comments and his responses overnight, and the tribunal then say this:
"… He told us with remarkable candour that "
I was attempting to use the Tribunal as a leverage to get the offer increased". He went on to explain at some length that his reference to a settlement at five or eight million points was appropriate because that was the kind of settlement which might be expected in the American courts and therefore some guidance for us." The tribunal then record:
"He explained and in considerable detail the background to this case. We found it startling that the entire focus of the Applicants submissions was his attempt, almost from the outset of his application, to persuade the Respondent why it would be "rather more convenient" for it to settle this case than let it go to trial."
[14]Mr Brown was then permitted to make certain submissions. Mr Mante in response to those indicated that he was content to rely upon his Originating Application as his written statement, that he did not have any witnesses in his support, although in April 1997 he had indicated that he would be calling five witnesses. Mr Mante said, according to the Employment Tribunal, that no witnesses had indicated their willingness to support him now or to come before the tribunal. Nevertheless, he said "there maybe some benefit" to him if the tribunal allowed this matter to proceed to a full hearing and they should do so.[15]In paragraph 21 of their decision the Employment Tribunal consider the meaning of the word frivolous and no criticism is made of that formulation. In paragraph 22 the Employment Tribunal itself remind themselves of the importance of the decision that they must make and that every litigant has the right to have his claim litigated provided it is not frivolous. In that paragraph the tribunal recognised his difficulties and that perhaps his financial resources limited the extent of his representation by legal representatives. They also reminded themselves that it was important that they should allow both parties to see that they had taken great care to balance justice fairly having regard not only to the applicant's entitlement to bring his claim but the respondents' interests as well, in particular, the fact that they had attended on 18 th January 1999 ready to proceed with numerous professional witnesses.[16]In paragraph 24 the Employment Tribunal reach the nub of the their decision. They agreed with Mr Brown that there had been a clear lack of reference in any way in the applicant's representations to the merits of his claim; that he had carefully and repeatedly told the tribunal of his actions leading them to the inescapable view that his mind has only been focussed on presenting such difficulties as he was able to the respondents such that it may be minded to pay him compensation to be rid of the claims put against it. The tribunal gave, according to them, very great consideration to everything that the applicant said and took those submissions in the round. They indicate that they would not contemplate striking out the applicant's complaint merely for his failure to comply with the directions in April 1997 and August 1998. Yet, they took the view that they could not ignore all the references to which they had been taken by Mr Brown and reached the view that the applicant was acting with the "sole and exclusive purpose of attempting to force the Respondent to reach a settlement at a level which, to their knowledge, has never been ordered by any Employment Tribunal in England dealing with discrimination claims". The fact that compensation for a racial discrimination claim does not have a statutory ceiling and therefore is at large, in our judgment does not prevent the Employment Tribunal expressing a view of that sort where the figures being referred to are so far out of the experience of Employment Tribunals in quantifying compensation in such claims.[17]The Employment Tribunal concluded that the attempt by Mr Mante, particularly since the August 1998 directions hearing, had been to compromise the respondents, with a view, as Mr Mante accepts it, to use the tribunal as "leverage". That leads the Employment Tribunal to the view that Mr Mante had conducted himself frivolously and that his claim has also been an abuse of process.[18]In paragraph 27 the Employment Tribunal say:
"We have no doubt whatsoever in finding that financial compromise was the Applicants only real intention and that he had little serious regard at any time in prosecuting properly the merits of the allegations put against the Respondent by his Originating Application."
[19]Accordingly, the Employment Tribunal concluded that they should exercise the power that they had to strike out the application.[20]We have thought about this carefully and particularly in respect of the skeleton argument and the oral submissions which support the skeleton argument. The Employment Tribunal carefully warned themselves about exercising their power to deny an applicant his right to pursue his claim properly, even in circumstances where attempts to settle had not succeeded, and in that respect they were, in our judgment, adhering to the principles enunciated by the Employment Appeal Tribunal in the case of Telephone Information Services Ltd v Wilkinson [1991] IRLR 148 , to which reference has been made. The tribunal were also careful to direct themselves that it was not merely for the want of compliance with the directions letter of 28 th August 1998 that they were being asked to, nor would they, strike out the application, nor was it for the fact that, no doubt for financial reasons, the applicant had recourse to legal representation only for limited purpose of seeking to negotiate a settlement. However, the Employment Tribunal took the view, having regard to the situation in the round and regarding all of those matter cumulatively, that this applicant had conducted these proceedings frivolously. That is to say he had no or little serious regard in prosecuting properly the merits of the allegations, even though when push came to shove on 19 th January, they record the fact that he was prepared to have the hearing proceed on the basis of using his Originating Application as his written statement.[21]In our judgment, the Employment Tribunal, having gone into this matter carefully, did not act erroneously in matters of law, nor did they act in a way in which no Employment Tribunal properly directing itself could reasonably have acted. There was ample evidence, much of it from the applicant's own mouth on 18 th and 19 th January 1998 from which they could come to the conclusion of fact which they did. Accordingly, notwithstanding the efforts of Ms Adeogun in her oral submission, we find that this is an appeal with no reasonably arguable prospect of success and therefore the appeal will be dismissed at this point.