Taplin v London Borough Of Tower Hamlets [1999] UKEAT 824_98_1305

EAT
Taplin v London Borough Of Tower Hamlets
[1999] UKEAT 824_98_1305 · 1999-05-13
HIS HONOUR JUDGE H WILSON: This appeal has been limited to the single ground, articulated by the Tribunal at the preliminary hearing, whether the Tribunal failed properly to identify the conduct which it considered to be frivolous, scandalous, vexatious or otherwise an abuse and/or in making its finding took account of irrelevant matters.Whilst it was open to the Tribunal to have regard to the Appellant's conduct in not attending the hearing on 21 January 1998, it is submitted that the Tribunal was not entitled to have regard to the three matters which are set out thereafter. Firstly, they were not entitled to have regard to the fact that the Applicant had not sought to move his application on 15 April because that hearing was solely concerned with the application to strike out and he therefore had no scope. Secondly, they should not have taken note that the Appellant's allegations were framed in a very generalised way and did not seem to be based on fact but on findings made by the Appellant: by doing so the Tribunal was making findings as to the merits, notwithstanding the fact that they had not got that far yet. Finally, they should have disregarded the claim that the Appellant knew or ought to have known that his claim had no reasonable prospect of success.The question is as to whether the Tribunal was entitled to have regard to the foregoing matters (amongst other things) when they were considering the application to strike out. That application had been made under the Industrial Tribunal Regulations 1993, Schedule 1, Clause 14, dealing with miscellaneous powers. In particular Clause 13(2)(e) provides that the Tribunal may at any time, at any stage of the proceedings, order to be struck out any Originating Application or Notice of Appearance on the grounds that the matter in which the proceedings had been conducted by or on behalf of the Applicant, or as the case may be, the Respondent, has been scandalous, frivolous or vexatious and they may do that on the application of the Respondent or of its own motion.Furthermore they can order that the original application be struck out for want of prosecution. That is an alternative additional matter which is not applicable here and of course the powers are all subject to subsection 3 of Clause 13. This is the clause which requires that before taking any action, an opportunity must be given to the party against whom it is proposed, to show cause why it should not be done.At today's hearing the Appellant has presented his own case and the Respondent has been represented by Miss Omambala who represents the Respondents throughout. Each side had produced skeleton arguments for the use of the Tribunal and Mr Taplin relied on what was set out in his skeleton argument and amplified it by his oral submissions to us today. In particular, he referred to page 3 of his skeleton. The first full paragraph on that page claimed that:
"in this case the Tribunal's final Order fails to pass the tests set out in the case of Meek v Birmingham District Council in that it does not specify precisely what the facts are surrounding my conduct."
"Instead of stating precisely and unequivocally what it was in my conduct that the Tribunal considered to be sufficiently serious to warrant striking out, the Tribunal has instead considered matters in its conclusions which are wholly inappropriate and/or irrelevant."
Orally he said that he directed our attention to paragraphs 24 to 27 of the decision by the Industrial Tribunal of 15 April 1999. He said that quite clearly those reasons are just not adequately stated in those paragraphs which represent the conclusions of the Tribunal.He went on to complain that the initial first hearing should have been abandoned rather than adjourned on 22 January because of his non-attendance and because of the letter which he had written. He complains today that the Tribunal in January were saying that they were giving him a chance to reflect on his position and then now in April, they state that he was in contempt. In that regard it is important to have regard (bearing in mind the context) the state of the Industrial Tribunal's knowledge in January so far as the Appellant was concerned. In the same way his strictures about the shortcomings of paragraphs 24 to 27 of the April judgement have to be taken in the context of the preceding paragraphs in that judgment.The Appellant went on to repeat that paragraphs 26 and 27 of the extended reasons in April deal with merits which are irrelevant and do not deal with conduct. He went on to say that the Tribunal had to give an opportunity to show cause and complained that he was not given one. He said that the Tribunal was not specific about the conduct in question and so they failed to give him the opportunity to show cause orally. We consider that that submission has to be regarded in the context of paragraph 20 of the decision. Finally Mr Taplin submitted that the Tribunal failed to specify the precise conduct upon which they acted and failed to say why it was sufficient for them to act as they did. Instead he claimed that the Tribunal had concerned itself with considering irrelevant factors and therefore that they had erred in law and their decision should be overturned.In reply Miss Omambala began by drawing attention to the very wide nature of the power given by Clause 13. She pointed out particularly that the Tribunal was at liberty to act at any stage in the proceedings providing they observe the requirements of the various sub-sections. She submitted out that what was at issue was the manner in which proceedings had been conducted and she pointed to paragraph 3 of the Extended Reasons for April, which in turn referred to details given in other paragraphs in the earlier decision. She also referred to paragraph 12 of the earlier decision where it was stated that the Tribunal and the Respondent through Counsel, have found very great difficulty indeed in understanding exactly the nature of the allegations of race and sex discrimination and breach of contract put against the Respondent.The major part of the Appellant's contentions, it seems to us, has been in the form of what amounts to his own findings upon which his non-specific assertions have almost exclusively been based. Mr Taplin has been quite unable to illustrate specific examples of any less favourable treatment on the grounds of race or sex or to illustrate that he has been - or may have been - treated differently from other persons in any way. That was a comment on the evidence as it stood after the second day of the proceedings in January. So far as non-specific generalisations instead of evidence are concerned, an illustration as to what the Tribunal meant is to be found at page 77 of the Bundle, which is page 18 of the Appellant's response to the Respondent's application to strike out and to the decision which had been sent to him on 28 January. Page 77 refers to the policy of non-discrimination operated by the Respondents and page 81 is a photostat of part of that policy to do with Equal Opportunity. On page 18 (77 in the bundle) the Appellant says that these examples illustrate the practical effect of the policy, the objective of which is to give particular consideration to members of groups who are in the scope of the statement "while omitting to ensure that the policy applies to me as a white man, and I am given equal consideration and equal treatment in comparison." He asserts that its effect is to exclude him as a member of a group which is not in the scope of the statement. It seems to us that that illustrates the matters of complaint to which we have just referred so far as the Tribunal was concerned in paragraph 12 of its earlier decision. Furthermore paragraph 22 of that decision deals with the manner in which proceedings were conducted by the Appellant. It is to be found on page 18 of the bundle and we note that at the conclusion of the hearing on that day, Mr Taplin made his position entirely clearly. He was not prepared to take any direction from the Tribunal. He was asked about that by us and adheres to his view, as we understand it, that it was quite wrong for the Chairman to point out the rules of procedure and how things had to be conducted in the Industrial Tribunal, and that he should have been allowed to do what he wanted to do at that stage in his cross-examination. He was not going to accept what the Chairman directed he had to accept, which was that any further evidence or redirection that he wished to give or make must wait until his turn and opportunity for re-examination came.In January (and this is another matter of complaint and misunderstanding) the Industrial Tribunal gave a preliminary review about Mr Taplin's evidence which was not (and they emphasised that it was not) a decided view because it had not been deliberated upon and they have not considered it. It was merely a preliminary review of his evidence bearing in mind that the burden of proof (so far as his unfair dismissal claims were concerned) rested on him to prove. The Chairman was at pains to point that it was different with discrimination cases because there it was rare indeed to form any view at all until after the Respondent's evidence had been heard. Miss Omambala points out and submits that that is a course which is frequently taken in Tribunal cases and that there is nothing improper in it. We agree with that submission.She then referred to the letter which did not reach the Tribunal (through nobody's fault) until 22 January but which had been faxed and was available to the Tribunal on 21 January from the Appellant. It was a two page letter which is to be found at pages 44-46 in the bundle and in it the Appellant states that he has no confidence in the Tribunal's ability to give him a fair hearing. Pausing there, the Appellant is not really in our view in the position of an ordinary litigant because he is a member of the Institute of Legal Executives and his work with the Respondent certainly involves legal duties. To that extent therefore he has greater knowledge of what goes on than the ordinary lay litigant. Secondly, we interpose, he made a statement towards the end of the hearing before us which quite clearly was untrue and must have been known to him to be untrue. He stated that he had known about the Respondents intention to apply to strike out on the evening of the second day of the hearing which he did attend, that is to say the 20 January. Manifestly that is untrue because at that stage the case was adjourned by the Tribunal for Miss Omambala to complete her cross-examination the following morning and thereafter the Appellant to give his re-examination.The question of illness so far as Mr Taplin was concerned was apparently first floated in his absence on the Thursday when he failed to appear and his letter was being considered. It was refloated and mentioned again in his presence on 15 April when Miss Omambala recollects that the Chairman asked him specifically whether he had been ill and the Appellant specifically said that he had not been ill but was unwilling to attend on 21 January. That information of course was not known by the Tribunal until 15 April 1998 and if it contributed to a change of its view of the Appellant's conduct, we would find that that is a perfectly reasonable change of view. Miss Omambala submits that the way in which he had conducted his case up until the end of 20 January, together with plus the contents of the letter written on that evening and his conduct on 15 April were all clearly relevant matters and were properly considered by the Tribunal when it was coming to a decision about what action, if any, it should take to strike out. She submitted that it was equally proper for the Tribunal to consider the manner in which evidence was given and the nature of that evidence which was given.On 15 April the Chairman confirmed that Mr Taplin had had the applications to strike out and the submissions in support and that is to be found at page 55 of the bundle. On 15 April the application by the Respondent was limited to the matters set out in paragraph 1(ii) and (iii) of the original application. Miss Omambala relies upon the description of conduct and so on which is set out in the decision of 15 April, and she refers to paragraph 11 of the decision, to be found at page 11 of the bundle. That paragraph states:
"As we have indicated previously these proceedings are subject to the provision of the Industrial Tribunals Rules of Procedure 1993. In particular Rule 13(2) at its various subparagraphs makes provision for an Industrial Tribunal to strike out an Originating Application or Notice of Appearance at any stage if it takes the view that the manner in which the proceedings are being conducted has been scandalous, frivolous or vexatious."
What constitutes such conduct depends on all the circumstances of the case. In particular, considerations of public policy and the interests of justice may be very material. In the instant case, "Mr Taplin had chosen to absent himself during the course of the previous proceedings without just cause, had sent the letter on 21 January, had indicated loss of all confidence in the Tribunal, and had wrongly asserted that he was refused permission to present his evidence.In paragraph 20 the Tribunal records that they gave Mr Taplin the opportunity to respond to Ms Omambala's submissions. That is to say he was given the opportunity orally to respond to show cause why his application should not be struck out.
"After some 25 minutes we noted that Mr Taplin had failed to address any of the issues put to us by Miss Omambala, preferring to occupy himself instead to what amounted to a repetition of his previous wide assertions, referring to what he said was the Respondents disgraceful conduct and what he continually told us were "hard facts". He raised various allegations which were unsubstantiated and general in nature and then sought to criticise not only the conduct of this Tribunal today, but it's earlier decision."
In our judgment there was the clearest possible opportunity to show cause and equally the clearest possible description of how the opportunity was used by the Appellant. His conduct in using it clearly was a matter which was properly taken into account by the Tribunal when they came to their conclusion.The Tribunal states that:
"We reminded Mr Taplin that he should occupy himself with the application put against him by Miss Omambala. He told us that he was not ill on the previous occasion but simply unwilling to come to the hearing. He then sought to criticise the Respondent for taking the view previously expressed by us, namely, to seek a postponement of the earlier proceedings. He said that he felt those proceedings should have been dealt with in his absence if only they be dismissed. We were surprised at this submission by Mr Taplin."
Similarly in paragraph 23 the Tribunal states that:
"We recognise the great responsibility by which Ms Omambala sought to postpone the earlier hearing rather than deal with it summarily in the Applicants chosen absence."
At paragraph 24:
" Mr Taplin then sought to deal with his explanation of the words vexatious and frivolous because of the Respondents application. He did so, in our view without responsibility, by attempting to put yet further allegations against the Respondent of a general nature."
All those matters are quite clearly in our view matters of conduct and manner of presenting a case which the Tribunal were entitled to take into account in reaching a conclusion.Miss Omambala went on to refer to the response to the application in writing which was set out at pages 60-80 of the bundle. She submitted that Mr Taplin's lack of contrition at the outset of the proceedings on 5 April and failure to make it plain to the Tribunal that he was asking leave to continue and proceed with the application, were matters of conduct which were relevant to be considered. She repeated that, so far as merits were concerned, Mr Taplin's knowledge about his chances was also relevant and potentially vexatious. Mr Taplin in response said that he had made it clear that he was going on with his application and drew our attention to the final paragraph on page 80 of the bundle, which was the conclusion of his submission dated 7 April, which was his response to the application.He says:
"It does appear to me that by allocating only one day for the adjourned hearing the Tribunal was working on the assumption that I would be desisting with my claim. This is definitely not the case."
He went on to say that the Tribunal had not said why his conduct was enough but had brought in other irrelevant matters such as merits. So far as the complaint about his differences with the Chairman were concerned he told this Tribunal:
"I must be allowed to criticise their decision, that must be right. I can criticise the directions given by the Chairman in his own Tribunal even though I have to accept them. To say that I can't is very harsh."
Our response to that is to say that to permit that he claims would lead to utter chaos in the conduct of proceedings in the Tribunal.That is a summary of the matters placed before us by the parties, and in coming to our conclusion we remind ourselves of the terms of Regulation 13(2)(e). We also remind ourselves of the context of this appeal and of its limits. We have to consider whether the Tribunal failed properly to identify conduct and whether it took into account any irrelevant matters.We have concluded that there is ample evidence to show that the Industrial Tribunal took into proper account matters of conduct only. We have regard to what is set out in paragraphs 20, 23, 24 and 25 of the Extended Reasons, to which reference has already been made in detail. We find that the Industrial Tribunal, in expressing the preliminary view at the end of the second day in January, was making no finding on the merits of the Appellant's evidence but merely commenting on what at that stage seemed to them to be its lack of quality and relevance to the case which Mr Taplin was seeking to bring. We take into account that he is not in the position of an ordinary lay litigant because of his professional ability and knowledge and that therefore he knew or ought to have been able to make an assessment of his chances. We therefore uphold the decision of the Tribunal. We find that they did not take account of irrelevancies but did properly identify conduct which justified the action which they took. Accordingly this appeal is dismissed.