MR L LAURENCIN v LUTON BOROUGH COUNCIL [1999] UKEAT 655_99_1810
[1]APPEARANCES For the Appellant MS J EADY (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE HOLLAND : This matter has been listed before us this morning by way of a preliminary hearing It is our task to decide whether the appeal discloses one or more points of law such as would found an inter partes hearing. If that be the case then we adjourn the appeal to allow that further hearing to follow. If, on the other hand, we can find no points of law then it is our task to say as much and, given that our sole function is to deal with points of law, thereafter to dismiss the appeal.[2]The Appellant, Mr Laurencin, has had this morning the very considerable advantage of representation by Ms Eady through the ELAAS scheme. I have been asked by both my lay members to express their gratitude to Ms Eady for clarifying the issues and to that request I certainly add my own endorsement. With her help the matter achieved a clarity which hitherto the papers had denied us.[3]In the overall result we are entirely satisfied that there are points here which justify an inter partes hearing and we will adjourn this matter for such hearing. To assist the Tribunal that hears the matter on an inter partes basis, the points that currently base our decision are as follows.[4]First, there is the decision of the Chairman to try the issues when he was sitting on his own and when he was doing so on the basis of an IT1 which was discursive and imprecise. Further, we draw attention to his decision to deal with this matter prior to the exchange of witness statements, he having ordered such on an earlier occasion. Essentially, should he not have left all these issues to be aired at the full hearing in the light of the evidence as it then emerged?[5]Second, we draw particular attention to paragraphs 5 and 19 in the Extended Reasons. It is in our view arguable that, by way of those paragraphs, he disclosed that he was proceeding on wrong bases of fact. Certainly, that would appear to be arguable.[6]Third, we draw attention to his application of section 68 (7)(b) Race Relations Act 1976. The problem here is as to whether there was a sufficient bedrock of fact to allow him to apply that paragraph in these particular circumstances.[7]Fourth, and for present purposes finally, there is the basis in law for the making of the Costs Order in paragraph 14. As Ms Eady points out, it is an unusual order to make and the more so arguably because of the interplay with incompetence on the part of Mr Laurencin's then representative, all as set out in paragraph 13.[8]Those then are the issues which currently justify out decision today and, no doubt, it will be those issues that the parties will be particularly concentrating on at the inter partes hearing.[9]Turning then to our directions for that hearing, we direct that it is half a day, listing Category C and subject to any further submission by Ms Eady, we would direct that skeleton arguments be exchanged 14 days in advance of that hearing and, although we do not make this a direction we respectfully suggest that the skeleton argument for the Appellant could usefully indicate what, in summary, is his case against the two individuals, that is, his case as to why the paragraphs 5 and 19 are wrong. Granted that it is plainly arguable that the Chairman was in error, it is impossible not to feel a certain amount of sympathy for him because the facts are not easy to mine from the papers that were in front of him. True that is an argument that justifies sending this matter forward anyway, but nonetheless it underlines a problem that sooner or later will have to be grappled with and the skeleton argument may be the first stage at introducing some specific clarity into the matter which will assist both parties.