MR A KALU v LONDON BOROUGH OF HACKNEY & OTHERS [2001] UKEAT 1070_01_2610

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1070_01_2610Case No Appeal No. EAT/1070/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A KALUAPPELLANTLONDON BOROUGH OF HACKNEY & OTHERSRESPONDENT
Before
His Honour Judge J R ReidDate 26 October 2001
[1]APPEARANCES For the Appellant MR KALU (The Appellant in person) HIS HONOUR JUDGE J R REID QC This is the first of three separate Ex Parte Preliminary Hearings on appeals by Mr Kalu against various Tribunal decisions made in his claims against the London Borough of Hackney and Others. In this particular appeal he is seeking to appeal against the refusal by the Employment Tribunal at Stratford to review the decision which it had made in dealing with the substance of his claim. The basis of the jurisdiction to review, as is well known, is to be found in Rule 11 of the Employment Tribunals (Constitution etc) Regulations 1993 . In particular in Schedule 1.[2]The position in this particular case was that the Tribunal Chairman considered the application for a review. It was in fact a renewed application, because there had been a first application to review which was thrown out on the basis that it did not give any detail, and a second and substantive application was then made setting out the grounds on which Mr Kalu suggested that the Tribunal ought to review its decision. The Chairman, when he considered that, directed the Tribunal to write, and the Regional Secretary wrote, addressing the issues which Mr Kalu had raised in his application for review and at the end, having dealt with those various 43 paragraphs, concluded:
"The request is refused by the Chairman as disclosing no reasonable basis upon which such a review could succeed."
Mr Kalu wishes to argue that the Chairman was wrong in that because the decision itself was wrong and therefore the decision should have been reviewed.[3]Going back to the Regulations, 11(1)reads:
"(1) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that …"
It then sets out five grounds including lastly (and this is the one on which Mr Kalu specifically seeks to rely):
" (e) the interests of justice require such a review."
At 11(5) the regulations provide:
"An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional chairman if in his opinion [and I stress those words] it has no reasonable prospect of success."
Clearly in this particular case the Chairman took the view that the review had no prospect of success and therefore refused it.[4]The right to review is not a second form of appeal. The fact that a review has been refused does not prevent a dissatisfied party from appealing against a decision. It is intended to deal with comparatively limited grounds. For example, cases where a decision is made in the absence of a party, or where new evidence has become available provided that its existence could not have been reasonably known or foreseen at the time of the hearing or where there has been an arithmetical error, those sort of cases.[5]The Chairman formed a view in this particular case that the proposed review did not have any prospect of success and he therefore dismissed it. Against that decision, it seems to us, that there is no sensible basis of appeal. A decision of that sort could be attacked on the grounds of the Chairman's bad faith, but Mr Kalu, after a little initial misunderstanding, very properly and very fairly said that he was not here to attack any personality, and that he had made that clear in all the Courts that he had been to, and that all that he was seeking to attack was the decision of the Tribunal on the basis that it had misdirected itself in point of law.[6]In those circumstances it does not seem to us that there can be any basis for granting Mr Kalu permission to carry on with an appeal against the refusal to review. Therefore we take the view that this appeal should go no further. I should make it clear that that has no affect one way or the other on any question as to whether or not Mr Kalu has any prospects of success or of being allowed to go to a Full Hearing in his attempts to appeal against the substantive decision of the Tribunal. This relates only to the refusal to review and, what seems to us, Mr Kalu's misguided attempt to attack that decision. This particular appeal therefore will be dismissed at this stage. We will now proceed to the next of Mr Kalu's appeals.