MRS E CARRINGTON v (1) LONDON BOROUGH OF HAMMERSMITH & FULHAM (2) MR J A REILLY [2001] UKEAT 0720_01_2906

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0720_01_2906Case No Appeal No. EAT/0720/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS E CARRINGTONAPPELLANT(1) LONDON BOROUGH OF HAMMERSMITH & FULHAM (2) MR J A REILLYRESPONDENT
Before
MR COMMISSIONER HOWELL QCMRS G MILLSMR T C THOMAS CBEDate 29 June 2001
[1]APPEARANCES For the Appellant MR S JUSS (Of Counsel) Messrs HCL Hanne & Co. Solicitors St John's Chambers 1c St John's Hill London, SQ11 1TN For the Respondent MR T PITT-PAYNE (Of Counsel) London Borough of Hammersmith & Fulham Legal Services Division Town Hall King Street Hammersmith MR COMMISSIONER HOWELL QC We have before us an Interlocutory appeal by or on behalf of Mrs Carrington brought by Notice of Appeal dated 27 June 2001 (that is two days ago) against the decision of the Chairman of the London North Employment Tribunal, communicated to the parties by letter dated 26 June 2001 on page 6 of the appeal file before us; in which the Chairman declined to direct a postponement of a 20-day hearing due to start on next Monday morning (2 July 2001), into Mrs Carrington's allegations of racial discrimination and racial harassment against the Respondents, the London Borough of Hammersmith and Fulham.[2]As I say, the decision of the Chairman related to a 20-day hearing which had been fixed to start next Monday morning and I record that it is now nearly 4.30pm on Friday afternoon, 29 June, and this appeal was only brought before us at 2.00pm today.[3]The proceedings before the Tribunal were initiated by Originating Application dated 4 March 2000, and made allegations of racial discrimination and harassment in that Originating Application, which were supplemented further by a revised application document after Mrs Carrington had had the benefit of assistance from the firm of solicitors then acting for her.[4]At pages 27-38 inclusive of the appeal file are that amended application dated 1 August 2000 and two lengthy documents annexed to the application; a statement of case and lengthy particulars of the Applicant's claim, based on what she felt had been a pattern of racially discriminatory behaviour by the against her by the Respondents or other employees.[5]It is stated in the statement of case that she had been off sick with stress, no doubt as a result of what she felt was wrongful conduct towards her, she had been compelled to resign after a disciplinary hearing as she felt that she could no longer cope with the stress and after the disciplinary hearing, to which she refers in her statement of case, she had had to attend hospital "as a matter of emergency", since the stress had actually had some physical manifestations for her.[6]It is in that context that the amended application document on page 27 included a claim for what is described as 'personal injury', although it is acknowledged before us that of course a complaint to an Employment Tribunal cannot be made for personal injury as an independent ground of complaint – that is simply an ancillary matter to the complaints of, in this context, discriminatory conduct within the jurisdiction of the Tribunal under the Race Relations Act 1976 .[7]On 15 November 2000 there was a preliminary hearing for directions before the Tribunal Chairman, at which Counsel attended for the Applicant and solicitors for the Respondents. Detailed directions were discussed and made for the progress of the case, which were recorded in a letter sent to the parties by the Tribunal on 17 November 2000.[8]That letter is not in the appeal file but has helpfully been provided to us during the course of the hearing. It included, among the detailed directions given for the progress of what was obviously understood, even at that stage, to be a heavy case, a direction in paragraph 8: 8. "The Chairman ordered that on or before 15 December 2000 the parties exchange lists of the documents upon which they will rely at the full merits hearing and there will be inspection not later than 5 January 2001. 9. The hearing will be for 20 consecutive days, commencing 2 July 2001"[9]Paragraph 10 directed that typed witness statements were to be prepared for all persons who would give evidence before the Tribunal, the statements would stand as the witnesses' evidence in chief and these were to be exchanged not later than 14 days before the hearing.[10]The Order for Discovery had followed correspondence in which, in October 2000, the solicitors then acting for the Applicant had complained that the documents so far divulged by the Respondents were inadequate. Following the Order made by the Chairman on 15 November 2000, we were informed by Counsel today that there had indeed been exchange of lists of documents, as directed, and that there had been an attempt at inspection but that that had not been proceeded with at that stage, for reasons which will appear in a minute.[11]There was, however, at that stage, no application made to the Tribunal or request between the legal representatives, as we understand it, for any supplemental discovery or more specific disclosure of documents.[12]What then happened was that on 25 January 2001 the Applicant's solicitor withdrew from the case for financial reasons; and in consequence of that no further progress was made with the preparation of the proceedings on her behalf until 10 May 2001 when, as we were informed, they came back on the record as acting as solicitors for her.[13]Having done so, they then immediately sought to re-open the question of disclosure of documents which they alleged were inadequate. They wrote a letter to the Tribunal on 14 May 2001, which again is not in the bundle but we have been supplied with a copy, confirming that the Applicant was pursuing her case and requesting that certain adjustments should be made to the timetable in the Order for Directions given nearly 6 months previously on 15 November 2000.[14]They proposed a different date (6 June 2001) for inspection, that agreement on the bundle of documents between the parties for the hearing should take place on 15 June and there should be exchange of witness statements on 18 June 2001 – the same date as before. Significantly, no application was at that stage made, and no suggestion was put forward that there might have to be an adjournment of the entire hearing.[15]The letter continued:
"Additionally the Respondents have not made full disclosure, particularly on issues surrounding the PIDA 1998 claim, to ensure the fair disposal of the hearing. We will be requesting for this in the near future and may need to seek a further Order."
The reference to the Public Interest Disclosure Act 1998 claim apparently related to an amendment that the Applicant had at a much earlier stage been allowed to make to the Originating Application, as recorded in a letter dated 1 December 2000, at page 40 of the appeal file before us.[16]They had apparently written asking to add a claim under that Act to the Originating Application and that had been accepted. However, no particulars or statement of how that case was to be made out, have ever been supplied to the Tribunal or to the Respondents; and indeed the Respondents appear to have been left unaware that that alteration had ever even been permitted by the Tribunal.[17]That letter of 14 May 2001 was then followed by two applications to the Tribunal on behalf of the Applicant. The first was on 14 June in a letter at page 45 of the appeal file before us, applying for witness orders under Rule 42 of the above Tribunal's rules.[18]There was given in that letter a list of 13 names of co-employees of the Respondents in respect of whom witness orders were sought. The reasons given were that the Applicant's solicitors had made initial contact with these witnesses but some of them were still in the Borough's employment and were reluctant to attend voluntarily for fear of victimisation.[19]That was followed by a further application on 21 June 2001 at page 48 of the appeal file in the following terms:
"It appears that our application for the request of discovery dated 13 June 2001 has not been addressed."
And a further order for discovery, in terms the detail of which is not before us, was then pressed for and the letter to the Chairman of the Tribunal concluded:
"If the Order for Discovery is not granted we are minded to appeal against your decision. In light of the imminent hearing, to start on 2 July 2001 for 20 days, we await your urgent response."
[20]On the same day a separate letter made the application with which we are concerned, which was an application for a postponement of the entire case. The terms in which that letter stated the case for a wholesale postponement of the hearing are important and we will refer to them from pages 49-50 of the appeal file. "21 June 2001: We note that the Respondents have opposed our application for a postponement of the case. We would like to make submissions as to why the postponement is crucial in accordance with Rule 15 for the fair disposal of the hearing for the following reasons: Inadequate disclosure The main reason is the inadequate disclosure of relevant documents. The original request was made in July 2000 and the response was received 3 months later without any substantial documentation that had been requested. The Borough Solicitor's Department were not even aware until as late as May 2001 that our application to amend the Originating Application to include the PIDA 1998 had been granted. Thus, the Respondents could not have possibly considered the necessity to provide disclosure on matters that had been raised under this claim. Financial Matters concerning the Applicant Unfortunately, shortly after this period our firm came off the record due to our Client's inability to meet the financial burden of the hearing. Upon the Client's persistent requests to us to provide advice and representation, we agreed to go back on record as from 10 May 2001. We explored the possibilities of instructing Counsel on a "no win no fee" basis. It was not until Friday 15 June 2001, we were able to confirm these arrangements, and we have instructed Counsel, Satwinder Juss from 6 King's Bench Walk. Unavailability of Witnesses and/or of their evidence On 20 June 2001 we sent you a fax regarding the unavailability of one of our key witnesses. Additionally, we have applied to you for witness orders in respect of 13 witnesses. Until the orders, if granted, have been served, we will have problems obtaining statements as the witnesses are in fear of being victimised by the Borough by providing evidence of their own volition. This means that, whilst we can divulge the names of the witnesses, we are not able to exchange the statements in time. Medical reports Our Client's Personal Injury claim cannot be substantiated until we receive the medical reports from the medical profession concerned. We made a request for a psychiatric report on 10 May 2001, on the same day as we came back on record, and are still not in receipt of this, despite several reminders. We gather from our Client that she was asked to attend the clinic on 20 June 2001 for another examination to enable the psychiatrist to provide a full prognosis of her current condition. We are hoping that the report is sent to us without delay, but in the event there is a delay, the evidence to prove our Client's case under this head of claim will be problematic."[21]The response to that letter is the Chairman's direction dated 26 June 2001, which is the subject of the appeal to us today and is at page 6 of the appeal file in the following terms: 1 "I refer to your recent request for a postponement of the hearing in this case. 2. A Chairman of the Tribunals has considered carefully all you say and has balanced that against the desirability of bringing this case to a hearing without delay. 3. The Chairman refuses your request for the following reason(s):(1) The date of hearing was fixed in Tribunal on 15 November 2000.(2) Moreover, your opponent has objected to the postponement requested."[22]Against that decision Mrs Carrington seeks to appeal, through her solicitors, and with the assistance with Mr Juss of Counsel, who has helpfully appeared for her on the appeal before us this afternoon, on grounds originally set out in the Notice of Appeal dated 27 June 2001 at pages 1-4.[23]The first major ground set out in that Notice of Appeal presented a rather different picture of the financial position, under the heading of "Financial Implications for the Appellant and Access to Justice", than had ever had been put before the Tribunal in the application under appeal. Paragraph 8 of the Notice of Appeal, which was confirmed by Mr Juss himself before us, recorded that the arrangements under which Counsel had been instructed for the hearing on 2 July 2001, had been subject to a condition, not referred to in the letter of 21 June 2001 which made the application, that Counsel would only appear for Mrs Carrington on the hearing on the proviso that "proper disclosure of documents" considered by the Applicant's side to be "vital to the case", would be obtained. Otherwise, as it is put in the Notice of Appeal "Counsel did not wish to take such a big risk".[24]That, however, was never a matter put before the Tribunal as a reason for a wholesale postponement of the proceedings and accordingly we have been unable to see how that additional matter can be made the subject of any appeal to us against the decision of the Tribunal that was given on the material put before it.[25]The remaining grounds of the Notice of Appeal sought to put forward arguments which were developed and amplified by Mr Juss on behalf of Mrs Carrington before us, to the effect that the Tribunal Chairman's decision rejecting the application made on 21 June 2001 had failed to take account of material points put forward specifically in the application, alternatively, had been perverse in the result, in that if proper account had been taken of those matters, no Tribunal reasonably directing itself to the relevant issues could have exercised its discretion other than by granting the postponement sought. Further or alternatively, it was said the terms of the letter of decision dated 26 June 2001 were so laconic that either it ought to be inferred that there had been a misdirection or a failure to take count of relevant matters, or the explanation given for rejecting the application was completely inadequate.[26]The general principles governing the approach of the Appeal Tribunal to an application of this nature, particularly at such a late stage before Tribunal proceedings are due to come on, were not in dispute between Counsel before us and are the subject of well-established authority. We were referred to the authority of Carter v Credit Change Ltd [1979] ICR 908 and the passage from Mr Justice Arnold's judgment in the earlier case of Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778 referred to by Lord Justice Stephenson at page 918B-D.[27]That passage is also referred to in a succinct and, in our judgment wholly accurate, passage of the judgment from the President of the Appeal Tribunal, Mr Justice Mummery (as he then was) in the case of North Yorkshire Police v Ashurst & Others (EAT/1280/95, 19 January 1996) where he summarised the principles in better language than we could conceivably formulate as follows:
"Industrial Tribunals have a wide discretion to grant or refuse an adjournment. They are and must remain in control of their own lists. If an adjournment is sought, an application should be made to the Chairman as soon as possible. If it is refused, the application can be renewed to the full Tribunal on the date fixed for the hearing. It is rarely justified for a party denied an adjournment to appeal to this Tribunal. The Appeal Tribunal will only disturb the exercise of the discretion if it is demonstrated by argument and, where appropriate, relevant evidence, that the discretion has been exercised contrary to legal principle, or without proper consideration of all the relevant circumstances or in a manner in which no reasonable Tribunal would exercise it. See Bastick v James [1979] ICR 778 at 782 (Arnold J). In most cases it will be difficult for the Appellant to demonstrate such an error of law by the Tribunal."
[28]Applying the principles there laid down, which as we say are not in any way in doubt or open to dispute, we have not been persuaded that the arguments put before us by Mr Juss, on behalf of Mrs Carrington, demonstrate that there is any ground for the Appeal Tribunal to interfere with what appears to us to have been a proper exercise of discretion by the Tribunal Chairman in this case, given the very late application that was made to him.[29]We consider that it is right to accept the arguments of Mr Pitt-Payne, who appeared for the Respondents that, as regards the matters put forward in the letter of 21 June 2001, it has not been demonstrated that there has been any material failure to take account of relevant considerations which should have induced the Tribunal Chairman to grant the postponement sought. As Mr Pitt-Payne pointed out, the difficulties the Applicants alleged they were suffering as a result of what they claimed to be, inadequate disclosure of relevant documents, (though of course that is not accepted by the Respondents: the question of the adequacy, or otherwise, of the disclosure given remains to be determined) were clearly put forward in the first main paragraph of the letter, and we see no reason to infer they were not taken into account. The Tribunal must in any event have been aware of the dissatisfaction of the Applicants as regards disclosure in view of the accompanying application by letter of the same date.[30]The second ground put forward in that letter headed 'Financial Matters Concerning the Applicant' did not, as we say put forward, in anything like sufficiently clear form, the consideration that the Applicant might find herself without legal representation at all if the application being made on 21 June was not accepted. Indeed it gives the opposite impression since it informs the Tribunal that arrangements for Counsel to be instructed on a 'no win, no fee' basis have now been confirmed, on 15 June 2001. Accordingly that head of the grounds put forward does not appear to us to give rise to anything which ought to have induced the Tribunal to take a different view of the application than the one it did.[31]Thirdly, there is a suggestion about unavailability of witnesses, which divides into two heads. First of all there was a question of non-availability of one specified witness, a Mr Barber, about whom a fax had been sent to the Tribunal. Again, that was not in our bundle but a copy of the letter to the Tribunal and of Mr Barber's own email, explaining his position, has been helpfully supplies to us.[32]Those documents make it entirely clear that the difficulty with Mr Barber only relates to the first week of the hearing (when he will be on holiday in France) and he has expressly confirmed that he is happy to provide a witness statement in support of Mrs Carrington and, in his words "Will of course attend as a witness for Eleanor." So his non-availability during the first week of the hearing could not conceivably be regarded as a ground for an application for a wholesale postponement of the full hearing due to last over 20 days.[33]The second aspect of that was the contention that there should be a postponement because witness orders had been applied for in respect of 13 other witnesses and that there would be problems in obtaining witness statements or being able to approach witnesses unless such orders had already been granted.[34]Again, this is a matter of which the Tribunal must have been aware because of the earlier application made to it and the reiterated grounds put forward in this letter as to the difficulties the Applicants considered they would be under if the hearing was to go ahead without such witness orders having been made.[35]Again we accept Mr Pitt-Payne's submission that that is not a matter which ought to have indicated to a Tribunal that there must be a wholesale postponement of the hearing. The question of outstanding witness orders, as indeed the question of whether any further discovery of documents was necessary, would be a matter perfectly properly to be dealt with by the Tribunal itself at the outset of the hearing or during the course of it, should it be satisfied that any further action was actually necessary in respect of either of those two matters.[36]Finally the letter referred to difficulty in obtaining medical reports and said that "Our Client's Personal Injury claim cannot be substantiated until we receive the medical reports from the medical profession concerned." Again, we accept Mr Pitt-Payne's submission that, in the context of the actual proceedings being brought, that would only be a matter going to the remedy which ought to be awarded to Mrs Carrington if the major issues as to discrimination, victimisation and liability on the part of the Respondents were decided in her favour. Again that could not be a proper justification for a wholesale deferment of the entire proceedings until whatever medical evidence was still being sought had been obtained.[37]We do not therefore accept that, on the basis of the Tribunal having that material in front of them, it ought to be inferred that the Chairman ignored it or wrongly failed to take it into account, in giving the decision refusing the postponement on 26 June 2001.[38]There is no suggestion of the Tribunal having wrongly taken into account any irrelevant matter and, although Mr Juss is, right in our judgment, in pointing out that the terms of that refusal letter of 26 June 2001 are fairly laconic and advert specifically only to a few of the points which would have been relevant to the Chairman's exercise of discretion, we again accept Mr Payne's submission that it is not proper for us to read paragraph 3 of that letter in isolation by itself but that paragraphs 2 and 3 ought to be read in conjunction with one another. Paragraph 2 specifically records that the Chairman has considered carefully all that was said in the application and had balanced that against the desirability of bringing the case to a hearing without delay.[39]In our judgment, on a matter of this sort it is not right for the Appeal Tribunal to infer from the fact that the reasons are fairly shortly stated and highlight only one or two points, that the Chairman has failed to direct his mind to all of the relevant questions put before him, or has in any way misdirected himself by not referring to every single point specifically.[40]Finally, on the more general ground suggested that no reasonable Tribunal could have done other than order a postponement in this case, what we already have said in relation to the specific grounds put before the Tribunal amply demonstrates why that cannot be made out as a separate ground of appeal.[41]It could not be said to be perverse for a Tribunal Chairman, in the circumstances in which this application is made, to take the view that the right course would be for the hearing which had been arranged some 7 months previously to go ahead and for as much progress as possible to be made, with the benefit of the fixture that the parties and the Tribunal had; and that any difficulties over individual matters, such as witness orders and discovery, could most properly be dealt with by the Tribunal actually hearing the case who would be seized of the issues it was necessary for them to determine, and could judge whether a fair and just disposal of those issues was prevented by the various procedural difficulties that have been explained in the application made and the difficulties as to finance and otherwise that the Applicant's representatives have found themselves under. That cannot be characterised as an unreasonable approach for a Tribunal Chairman faced with an application for a wholesale adjournment of a 20-day hearing to have adopted.[42]Although it was not a matter which we thought right (indeed Mr Juss did not we understand argue that it was) for us to take into account as a ground for this appeal, if it is the case that the Applicant is in difficulty with legal representation when the case comes to be called on on Monday morning, that too will be a matter for the good sense and judgment of the Tribunal charged with hearing the case to deal with and to give any directions needed: if indeed, when it comes to it, the Applicant does find herself without adequate legal representation. For those reasons we unanimously dismiss this appeal. Having heard Counsel on both sides on an application Mr Pitt-Payne made to us for the costs of the appeal we have decided to make no order. Though we do not consider it reasonable for such an appeal to have been brought in the circumstances, we take into account the harsh effects an order for costs in favour of the Council would have on the Appellant personally (as Mr Pitt-Payne conceded we could) and we do not exercise our discretion to order costs under Rule 34 of the Employment Tribunal Rules 1993 in this case.