MR P MGBEOJIKWE v (1) MR T WARREN (2) HM CUSTOMS & EXCISE [2000] UKEAT 351_00_0507

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 351_00_0507Case No Appeal No. EAT/351/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P MGBEOJIKWEAPPELLANT(1) MR T WARREN (2) HM CUSTOMS & EXCISERESPONDENT
Before
Mr Justice LindsayLord Davies of CoityDate 5 July 2000
[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a preliminary hearing the appeal of Mr Mgbeojikwe in the case Mgbeojikwe against Mr Terry Warren and the Commissioners of Customs and Excise and this morning Mr Mgbeojikwe has been before us in person. To set something out of the history of the matter, on 13 December 1996 the Appellant lodged an IT1 claiming "Racial Discrimination, Victimisation and Harassment" against the Commissioners of Customs and Excise and Mr Terry Warren. In their IT3, which was joint on behalf of both, both took the point that the complaints were out of time. There was a hearing on 21 November 1997 at London (North) under the chairmanship of Mr A Bano and on that occasion Mr Mgbeojikwe appeared by Mr Cottle of Counsel. The unanimous conclusion of that Tribunal was as follows:
"The unanimous decision of the Tribunal is that it does have power to consider the Applicant's complaints of race discrimination in so far as those complaints are specifically referred to in his letter to the Respondents of 11 February 1996."
[2]That decision was sent to the parties on 2 January 1998 and so, accordingly, a merits hearing was arranged and it was arranged for 27 July 1998 before an Industrial Tribunal (Employment Tribunal) under the chairmanship of Mr Menon and, again, the Appellant was represented by Mr Cottle of Counsel. The Customs and Excise also had Counsel.[3]Terms were negotiated between the parties and their advisers and, on the face of things, as far as we can see, terms were agreed and they were recorded in writing, signed by Counsel for the Appellant, Counsel for the Commissioners of Customs and Excise and by Mr Warren. There is also a short note that was, presumably, prepared for the purpose of handing in to the Tribunal. It says this:
"Upon terms being agreed between the parties the Applicant withdraws his claims herein against both Respondents."
And it is dated 27 July 1998. It is signed by Mr Warren and it is signed by the Counsel for the Commissioners; it is signed by Mr Mgbeojikwe and also by his Counsel. That having, no doubt, been laid in front of them and the situation having been explained, the Tribunal under the chairmanship of Mr Menon, made a decision which was as follows and set it out:
"Appearances For Applicant: Mr M Cottle of Counsel For Respondent: Mr C Johnston of Counsel DECISION The application is dismissed on withdrawal by the Applicant."
And that was sent to the parties on 6 August 1998.[4]In the meantime, on 31 July the Commissioners of Customs & Excise wrote to the Appellant's Solicitors as follows:
" P MGBEOJIKWE –v- COMMISSIONERS OF CUSTOMS AND EXCISE Further to the Applicant withdrawing his claims against the Respondents and in accordance with the terms agreed between the parties on the 27 th July 1998 at the Industrial Tribunal (London North) please find herewith: 1 A payable order in the sum of £3,000 made out in the name of Patrick Mgbeojikwe in full and final satisfaction of all the Applicant's claims under the Race Discrimination Act 1976 in relation to his employment with the Respondents. 2 A copy of the agreement between the parties dated 27 th July 1998. I would ask that you acknowledge safe receipt of the payable order by return."
[5]So that is the position as at 31 July 1998. There is then a very considerable gap and the next development is that on 3 February 2000 the Appellant wrote to the Tribunal at London (North) a letter which is at our page 27. One has to remark on the gap between the two dates. Mr Mgbeojikwe wrote a letter to the Chief Executive, London (North), saying as follows:
"On 27 September 1998 [that is a simple mistake, we overlook that] following London North Industrial Tribunal Order, case number … hearing was withdrawn based on a written contract entered into by HM Customs & Excise to make amends by a fresh start, to ensure that the bone of contention is offered to Patrick Mgbeojikwe in settlement. Recent events on 25 November 1999, has shown beyond any reasonable doubt that London North Industrial Tribunal and Myself (Patrick Mgbeojikwe) were misled in agreeing to enter into that contract. Given that it is now more than one year since that contract was entered into before the Chairman of the Tribunal and given that during the course of that period, things have got worse by way of continuing direct and indirect discrimination. I now come to you for special arrangements for access or other facilities to my Solicitors to reinstate the withdrawn hearing."
That is dated 3 February 2000.[6]On 23 February 2000 the Appellant wrote, on either the original or copy of the letter of 31 July, and addressed this writing to Mrs Mason, the Regional Chairman at London (North). It may be that he had also spoken to a Clerk at the Employment Tribunal asking that the case should be re-opened and that the withdrawal should be overturned. What he wrote in longhand on the copy of 31 July was as follows: "Dear Mrs T.J. Mason I have just received this copy and the attachments. There is no doubt that this is a false document. …" [and he continues beyond that]. He also claimed that one of the signatures, at any rate, was not his signature, but there was no explanation of the very great lapse of time.[7]On 23 February the Regional Chairman wrote back to Mr Mgbeojikwe:
"I refer to your note given to the clerk, Ms Samia, on 23 February 2000 written on a letter from the Respondent's representatives containing the terms of the settlement agreed on 27 July 1998 and attached to other correspondence including your request to reinstate the hearing. I note that at the hearing on 27 July 1998, you were represented by Mr Cottle of Counsel and that, following a negotiated settlement, you withdrew your complaint and it was dismissed by the Tribunal. In those circumstances there can be no further proceedings. Your application to reopen the case is refused."
[8]On 6 March 2000 the Appellant lodged a Notice of Appeal and the decision which is sought to be appealed against is Mrs Mason's letter of 23 February 2000 and also Mr Mgbeojikwe has sworn an affidavit on 6 March 2000.[9]On 12 April 2000 an Appellant's PHD form (as they are called) was received by the EAT raising grounds that have not been touched on before. For example (and this is at our page 25):
"(a) That if Mrs T.J. Mason had properly directed herself on evidence before her, she will not have come to the decision she made. (b) She acted unfairly and biased against me. Therefore treated me in detrimental way notwithstanding available evidence before her."
[10]The affidavit that Mr Mgbeojikwe had sworn was, as is the custom in these cases, sent to Mrs Mason, as the Regional Chairman, and she replied on 5 April 2000. She said, speaking of the earlier hearing:
"The case was listed for a three-day hearing starting on 27 July 1998 and the Notice of Hearing sent to the parties on 20 May 1998. At the hearing before Mr Menon, [and then, she also mentions the two lay members he was sitting with] the Applicant was represented by counsel. At 10.05 am the parties asked for time to settle and at 11.05 am they told the Tribunal they had settled. The Applicant withdrew the claim. I attach the Tribunal's Decision which you will see was sent to the parties on 6 August 1998."
[11]On 29 June 2000 a skeleton argument was produced by the Appellant. We have to say that the appeal here is entirely misconceived. If Mr Mgbeojikwe, the Appellant, has a case for setting aside the agreement between the parties of 27 July 1998, on the grounds that it was procured by fraud or on any other ground, he cannot set about implementing that attack by attacking Mrs Mason or any purported decision of 23 February 2000.[12]We are not thought to be saying that the Appellant does have a case for setting aside the withdrawal of his IT1 on 27 July 1998 or that he has a case for undoing the compromise that lay behind that withdrawal of his IT1. But even if the Appellant had a completely cast-iron case to that end, it would not lead to grounds to undo Mrs Mason's letter of 23 February 2000 and the reason is that Mrs Mason had no power to reopen the case.[13]No application for a review of the decision of 27 July 1998 has been made and, if it had been made, it would not have been made to Mrs Mason, who had not been involved on 27 July 1998, but would have had to have been made to Mr Menon and the other lay members that heard the case on that day.[14]So there has been no review of the decision of 27 July 1998, nor has there been any appeal lodged against the decision of 27 July 1998, nor have there been any fresh proceedings to set aside the decision of 27 July 1998. Again, we would not wish to be thought to be encouraging Mr Mgbeojikwe to take any such steps or to be suggesting that he might have a good case for any such relief. He should think very carefully and, if possible, take legal advice before launching proceedings because otherwise he might find himself liable in costs as having conducted proceedings unreasonably or unnecessarily. But, looking simply at the issue before us, which is a purported appeal against a decision of 23 February 2000, we must dismiss it.[15]There is, strictly speaking, no decision of the Tribunal of 23 February 2000 and to that extent there can be no appeal against it. Even if the Regional Chairman's letter of 23 February 2000 was taken to be a decision by her, her decision could not, in law, have been other than it was because she had no power to reopen the case.[16]We have heard Mr Mgbeojikwe at some length this morning and, it seems quite clear, his complaint is not so much that the withdrawal on 27 July 1998 was improper, but that the agreement then made has not since been honoured by the Commissioners of Customs and Excise and it would seem, in that behalf, that he is alleging that there was an agreement other than or different to the one which we have referred to, as having been signed by Counsel on his behalf. That is a subject we cannot go into. It is not a matter that concerns us on the appeal before us, which is strictly against the decision of 23 February 2000, or the non-decision of 23 February 2000, as we have explained.[17]It will be very difficult for Mr Mgbeojikwe to set up an agreement other than the one signed by his Counsel on that day and the agreement that was signed by his Counsel on that day is relatively limited in form and it does not seem to be of the nature that Mr Mgbeojikwe is now saying was, in fact, agreed. That is a problem for Mr Mgbeojikwe should he try and assert a contract other than the one signed by his Counsel but it is not a matter that we can begin to deal with on this appeal, limiting ourselves simply to the matter strictly before us. As we have mentioned, Mrs Mason could not have done other than she did in declining to reopen the withdrawal of 27 July 1998. In point of law she must have been correct to do as she did. Therefore, there is no error of law in the only decision appealed against and, accordingly, even at this preliminary stage we must dismiss the appeal.