DR A M S ZALZALA v THE UNIVERSITY OF SHEFFIELD [2001] UKEAT 0201_01_2503

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0201_01_2503

Case No Appeal No. EAT/0201/01 EAT/0202/01 EAT/0203/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DR A M S ZALZALAAPPELLANT

THE UNIVERSITY OF SHEFFIELDRESPONDENT

Before

Mr Justice Lindsay

Date 25 March 2001

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) We have before us an adjourned Preliminary Hearing in the matters Zalzala v The University of Sheffield and also (I think) Zalzala v The University of Sheffield and The South Yorkshire Police . There are two sets of proceedings that Dr Zalzala has brought. Today, no one appears in front of us at all. Dr Zalzala would have been represented by an ELAAS representative if Dr Zalzala had attended but it is a rule of the ELAAS system that if the party, him or herself, does not appear, ELAAS cannot appear for the party. Dr Zalzala was told that by letter of 21 March 2002; that letter said:

"Please note that the ELAAS representative is not able to act on your behalf at the forthcoming preliminary hearings unless you are in attendance. If you do not attend the aforesaid hearings these matters may be considered in your absence on the basis of those papers before the Court."

That letter suggests that the matter would not be simply dismissed on the footing that Dr Zalzala had not attended, so it is incumbent, as it seems to us, to look at the papers and to see if there is any arguable point of law left.

[2]It has to be said that Dr Zalzala is a persistent man and a persistent litigator. On 20 July 2001, we (and that means the three of us) heard a Preliminary Hearing - or series of Preliminary Hearings - most of the day, involving several separate appeals. Unusually, for a Preliminary Hearing, we reserved judgement. Even more unusually we dealt with the matters that were then before us, over some twenty three and a half pages of transcript. There was a great deal to get through. All but three separate matters, all Preliminary Hearings arising out of Dr Zalzala's Notices of Appeal of 6 November 2001, were dealt with and dismissed. Three matters remained and they can be labelled 0201/01, 0202/02 and 0203/01.

[3]To take the simplest case first - 0203/01. In November 2000 Mr Russell, the Chairman at Manchester, was faced with arranging for two hearings. The first was an application by the Respondents for costs against Dr Zalzala and the second was an application by Dr Zalzala to strike out that application. On 2 November 2000 the Employment Tribunal wrote to say that they would be heard together, it said:

"The Chairman considers that on balance it is appropriate for both applications to be listed for hearing on the same date. The Chairman appreciates that by so directing the parties will be put to the inconvenience of preparing for a costs hearing which will not take place if the striking out application is successful. However if the applications are listed for separate dates the parties will be put to the inconvenience of attending on 2 occasions in the event that the striking out application is unsuccessful. In regard to this the Chairman notes that you are based [it is addressed to Dr Zalzala] in Edinburgh and the respondent's Solicitors and Counsel are based in Sheffield and London respectively. On balance the Chairman considers that the interests of justice dictate that both applications should be listed for hearing on the same day."

At the end of the letter it said:

"In conclusion the Chairman has asked me to confirm that both applications will be listed for hearing on 28 November 2000 as stated in the letter of 23 October 2000."

There is, in our view, no conceivably arguable error of law in that decision and the reasons given for it. The appeal is dismissed at the preliminary stage.

[4]Next, we look at 0202/01. Dr Zalzala had applied for a review of the Tribunal's decision of 26 September 2000. That decision struck out his case. The application was considered by Mr Russell, the Chairman. The decision reads as follows:

"In exercise of the power conferred upon me by Rule 11(5) of the Rules of Procedure set out in the First Schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 I refuse the application for a review by the applicant contained in his application sent on 14 September 2000 and the addendum sent on 7 October 2000 on the grounds that it has no reasonable prospect of success."

The Chairman set out the nature of the application. In his paragraph 2 he said:

"By his application sent to the Tribunal on 14 September 2000 and by an addendum sent to the Tribunal on 7 October 2000 the applicant applies for a review of the Decision made on 4 September 2000."

The Chairman continued:

"The applicant relies upon Rule 11(1)(d). Namely that new evidence has become available since the conclusion of the hearing to which the decision relates, provided its existence could not have been reasonably known of or foreseen at the time of the hearing. Further he relies upon Rule 11(1)(e) which provides that the interest of justice require such a review."

The Chairman carefully satisfied himself as to the so-called new evidence, that it did not fall within the Rule, which is Rule 11(1)(d) – we will not read that out but we have it in mind. He concluded:

"Having regard to the matters set out above I find that the application for a review pursuant to Rule 11(1)(d) is wholly misconceived and has no reasonable prospect of success."

We are quite unable to detect any arguable error of law in that part of Dr Zalzala's Notice of Appeal and we dismiss that, again, at this preliminary stage.

[5]That leaves only 0201/01. At the hearing at Manchester on 4 September, scheduled to be the Full Hearing, Dr Zalzala once again asked for an adjournment. He had done so before; there was a long history of applications of that character. The request for an adjournment was refused. The Respondent then applied to strike out Dr Zalzala's Originating Applications on two grounds, either additional or cumulative, firstly, for want of prosecution on Dr Zalzala's part and, secondly, that the manner in which the proceedings were being conducted was scandalous and frivolous. We will not read out Rule 13(1)(e) or 13(3) or 13(4) – but, again, we have them in mind.

[6]There was a rather long spread of history of delay, as we mentioned. The Tribunal said:

"The claims were lodged back in November 1998 and December 1995 and in relation to incidents going back to 1995. The Tribunal is mindful of the fact that witness statements have been prepared but even so the recollection of witnesses is likely to become less reliable if further delay is allowed. Further this matter has been "hanging over the heads" of the witnesses in this case for a considerable period of time and it is desirable that the issues should be resolved sooner rather than later. Moreover having regard to the complexity and length of the case it is likely that there would be a substantial delay before the case could be re-listed for hearing if it were to be adjourned. This is the third occasion that the respondent's witnesses and legal representatives had made themselves available for a hearing. Substantial inconvenience will be occasioned and substantial costs incurred if a further adjournment were to be granted."

In their paragraph 14 they then said:

"Accordingly we decline the applicant's request to adjourn the hearing. After our ruling on this issue was given on the first morning of the hearing we informed the applicant that we would be prepared to commence the hearing on the following day in order to give him a further opportunity to prepare his case. The applicant indicated that he was not prepared to present his case or to take part in a substantive hearing even if the commencement was delayed until the following morning. Ms Tether [she was appearing for the Respondents] then made an application that the Originating Applications should be struck out for want of prosecution (pursuant to Rule 13(2)(f), or on the grounds that the manner in which the proceedings had been conducted by the applicant has been scandalous, frivolous or vexatious (pursuant to Rule 13(2)(e). The applicant had been put on notice by the respondent's solicitors by their letter of 25 August 2000 that such an application would be made if the applicant was not prepared to proceed with the full hearing."

The Tribunal made a number of observations, they said:

"By reason of his actions we consider that there has been a want of prosecution on the part of the applicant. In such circumstances we consider, in the exercise of our discretion, that it is appropriate to strike out the Originating Applications for want of prosecution."

A little later, relative to the word 'scandalous' they said:

"A definition of "scandalous" given by the Oxford Dictionary is conduct which would cause public outrage or indignation. In that the applicant refused to take part in a hearing notwithstanding that the Tribunal considers that he has no proper grounds for refusing we find that his conduct is scandalous because it would be liable to cause public outrage or indignation. We also find that he has conducted the proceedings frivolously."

In their paragraph 19 they said:

"In the exercise of our discretion we strike out the Originating Applications on the grounds that the manner in which the proceedings has been conducted on behalf of the applicant has been scandalous and frivolous and/or for want of prosecution."

[7]There are some features there that are a little troubling. Dr Zalzala's case was brought to the Employment Tribunal right down to preparation for a substantive hearing. In that circumstance can one say there has truly been a want of prosecution? Is it not that want of prosecution is an expression that deals with a situation where something interlocutory has required of a party, for example, discovery or further and better particulars or something on those lines, where the party does not perform as some Order has required him to perform and that there is consequent delay in getting to a Full Hearing or such, indeed, that the Full Hearing is never reached? Here the Full Hearing was reached . Does the Respondent suffer prejudice by way of the Applicant not proving his case at the Full Hearing? Should not the Applicant have either asked for judgment in the absence of the Applicant, as was the procedure under the old Rules of the Supreme Court Order 35 Rule 1(2), or, alternatively, could not the Respondent have called its witnesses and proceeded to ask for judgment such as their unchallenged evidence would justify? As for scandalous, would it truly cause public outrage if it was appreciated that the Respondent could get judgment in the Applicant's absence? Indeed, many Respondents would think it a positive bonus to have an Applicant absent. As for frivolous, there was no decision on the Tribunal's part to strike out Dr Zalzala's case solely on the footing that it was frivolous. Whether it would have done so is, of course, unclear.

[8]Here - possibly stretching a point in Dr Zalzala's favour - we do see that there is something that may be said to be arguable. Accordingly, as to the strike out, we do allow the appeal to go forward on the basis we have indicated. Skeleton arguments are to be exchanged not less than fourteen days before the date fixed for the hearing and, of course, also sent to the Employment Appeal Tribunal at the same time. The matter is Category B and should not take more than an hour and a half.