MR D MALKAN v THE CHIEF EXCUTIVE, NHS EXECUTIVE & 17 OTHERS [2001] UKEAT 1153_00_3101

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1153_00_3101

Case No Appeal No. EAT/1153/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR D MALKANAPPELLANT

THE CHIEF EXCUTIVE, NHS EXECUTIVE & 17 OTHERSRESPONDENT

Before

Mr Justice Lindsay

Date 31 January 2001

[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the First, Second, Third and Nineteenth Respondents For the Fifth to Eighteenth Respondents MISS J COLLIER (of Counsel) The Office of the Solicitor Room 523A The Department of Health New Court 48 Carey Street London WC2A 2LS MR M STEWART (Solicitor) Carter Lemon Camerons Solicitors 11-13 Breams Buildings London EC4A 1DW MR JUSTICE LINDSAY (PRESIDENT) : I am asked to give directions in proceedings in which Mr D H Malkan wishes to proceed by way of appeal against nineteen separate respondents. There has as yet been no preliminary hearing. The first respondent is the Chief Executive of the NHS Executive, the second is the Chief Executive of the NHS Executive (West Midlands), the third is the Post Graduate Dean of Birmingham. Miss Collier appears for the first three and the nineteenth. The fifth to eighteenth appear by Mr Stewart. Mr Malkan is in front of me in person.

[2]In those proceedings, shortly after they were launched, there was an application made under Employment Tribunal Rule 7 for the payment by Mr Malkan of a deposit. I will come back to the Rule shortly. There was then a hearing on 21st June 2000 before the Chairman, Mr S Ahmed with two members, Mr J Brown and Mrs M M O'Donnell, to determine whether a deposit under Rule 7 should be required of Mr Malkan. The decision, which was sent to the parties on 7th July 2000, reads as follows, so far as concerns the Order part of it:

"The tribunal considers that the applicant's claims of race and/or sex discrimination in relation to the 1st, 2nd, 3rd, 5th, 7th, 8th, 9th, 10th, 11th, 12, 13th, 14th, 15, 16th, 17, and 19th respondents have no reasonable prospect of success. The tribunal therefore orders the applicant to pay a deposit of an amount of £150 against each of these sixteen respondents no later than 21 days from the date of receipt of this order as a condition of being permitted to continue to take part in the proceedings in the matter referred to above. (Total amount £2,400)."

Underneath that were given summary reasons and a material paragraph said:

"After considering the contents of the Originating Application, Notices of Appearance and the submissions made by the parties, it does not appear to the tribunal the applicant has any reasonable prospects of success against any of the respondents, with the exception of the 4th respondent against whom the claim has been withdrawn, (and the 6th and 18th respondents on which more is said below). None of these respondents were at any time the applicant's employers or qualifying bodies or persons concerned with the provision of vocational training."

That reasoning was, to some extent, amplified in the remaining paragraphs 2 and 3 and hence the deposit of £2,400 (that is to say 16 x £150) was ordered.

[3]On 9th August 2000, in good time, a Notice of Appeal against the decision on behalf of Mr Malkan was received by the Employment Appeal Tribunal.

[4]There has been an element of confusion because it has not been made entirely clear whether today's hearing was merely a directions hearing in relation to that appeal, an appeal in which there is yet to be a preliminary hearing, or whether today was to be that preliminary hearing or quite exactly what was going on today.

[5]That confusion stems from the fact that there are a number of appeals and cross-appeals in which Mr Malkan is involved and which I have been dealing with since 10.30 a.m.. It is now almost 12.45 p.m.

[6]The other matters before me gave rise to considerable number of questions such as in relation to Chairman's notes and have been dealt and this matter now before me was perhaps not sufficiently identified by the Employment Appeal Tribunal as it should have been to indicate precisely what was going on today. So there has, as I say, been a certain mount of confusion.

[7]For all that, Mr Malkan asks for a series of directions in relation to this appeal. Before I come to them I ought to draw attention to Rule 7. Rule 7 (4) says:

"If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter."

Rule 7(5) says:

"No order shall be made under this rule unless the tribunal has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the order to comply with such an order, and had taken account of any information so ascertained in determining the amount of the deposit."

Rule 7(6) says:

"An order made under this rule, and the tribunal's reasons for considering that the contentions in question have no reasonable prospect of success, shall be recorded in summary form in a document signed by the chairman. A copy of that document shall be sent to each of the parties and shall be accompanied by a note explaining that if the party against whom the order is made persists in participating in proceedings relating to the matter to which the order relates, he may have an award of costs made against him and could lose his deposit."

Rule 7(7) says:

"If a party against whom an order has been made does not remit the amount specified in the order to the Secretary either- (a) within the period of 21 days beginning with the day on which the document recording the making of the order is sent to him, or (b) within such further period, not exceeding 14 days, as the tribunal may allow in the light of representations made by that party within the said period of 21 days, the tribunal shall strike out the originating application or notice of appearance of that party or, as the case may be, the part to which the order relates."

By way of underlining that it is inescapably a provisional view which is to be taken by a tribunal and one that it is not to be permitted to colour the view of the full tribunal that ultimately hears the substantive case there is Rule 7(9):

"No member of a tribunal which has conducted a pre-hearing review shall be a member of the tribunal at the hearing of the originating application."

[8]Those Rules give rise to a number of points. The first is that there was here not only an order to pay but also no stay of the order to pay. No stay, for example, pending an appeal. I did enquire of Mr Malkan whether he had actually paid the £2,400, having wrongly assumed that he had. It transpired that he had not and he tells me that he has not only not paid but has no intention of paying. In which case, the question will arise whether the proceedings should already have been struck out under Rule 7(7) because the concluding words are "the tribunal shall strike out the originating application". But, leaving that aside and assuming in favour of Mr Malkan that we have some live proceedings extant, the question is how far, if at all, should I accede to his request for directions?

[9]It is notable that the whole object of these Rules 7(4), (5), (6) and (7), is that there should be a robust and simple procedure under which, at an early stage, a tribunal should form a view or not form a view, as the case might be, as to whether the applicant, as it is in this case, has any reasonable prospect of success. It is inescapably intended to be a simple and speedy process, not involving a great deal of cost, as the whole object of the exercise is to avoid the parties getting involved in costs that prove to be completely unnecessary and perhaps irrecoverable. With that view of the operation of the jurisdiction in mind, I turn to Mr Malkan's request.

[10]He seeks to have a hearing of his appeal, be it preliminary or full (it matters not for the moment) at which a great deal of other information is to be brought forward and laid before the Employment Appeal Tribunal. He seeks that examples from other cases should be brought forward and considered in this case. He gives examples in his paragraph 1 requiring that case no. 42464/94 (Shrewsbury) should be somehow considered within the consideration of the immediate appeal and he gives examples in (i) to (viii) of matters that he says require to be looked into in the course of the appeal on the deposit question. He, in paragraph (ii), asks permission to adduce further evidence as to the conduct of the Department of Health Legal Team with regards to evidence given at other tribunals and proceedings to prove his claim of continuing discrimination and/or victimisation. In paragraph (iii) he asks for transcripts of evidence, first of all of the entire transcript of an entire hearing of the Shrewsbury case to which I have referred and then a great deal of evidence given in other matters. He wishes, for example, to have the evidence of Professor Temple, Mr Thomas, Mr Mulligan, Professor Wall, Mr Hooey, Mr Evans, Miss Gadsby, Mr Colin Bell, Mr Quarcoopome and Mr Choudhury all considered within his appeal on the deposit question. He asks for evidence on which the Birmingham Employment Tribunal came to a particular decision and he asks in his paragraph (iv) for disclosure of lists. He asks the Department of Health to identify numbers and representatives in relation to nomination to the specialist training authority of the Royal Colleges. He asks for an order that the Royal College of Surgeons identify members of a particular panel. He asks in his paragraph (vii) that the Royal College of Surgeons should identify the position held by each of the respondents no. 7 to 19 and that that should be set out in tabulated form. He asks for the entire transcript of the pre-hearing before Mr Ahmed on 21st June 2000 and he asks what action the EAT intends to take against the Department of Health for making a submission which is only relevant for the purpose of the main hearing. He explains that in his final subparagraph (ix).

[11]His requests are utterly disproportionate to the function of the Rule, which I have explained. It is intended to be robust, simple, cheap and to be carried out early on. So far as concerns any complaint against Mr Ahmed as Chairman, there seems to be a complaint that he said that he would attend only to Mr Malkan's IT1 and to nothing else. If that is intended to represent a complaint as to bias or prejudice or as to the wrongful shutting out of that which should have been admitted or other hostile conduct at the hearing on 21st June 2000, well then, that cannot be entertained because there is no affidavit to that effect of the kind which the Employment Appeal Tribunal Practice Direction requires. As to the rest, it is completely disproportionate. It would make the simple question of whether or not a deposit should be paid and, if so, how much it should be, a hugely expensive operation, which it is manifestly intended not to be.

[12]I direct that there shall be a preliminary hearing of Mr Malkan's appeal. It would have been convenient that it could have been dealt with here and now but I thoroughly understand that Mr Malkan, because of the confusion in the correspondence, did not come here expecting there to be a preliminary hearing, nor indeed, did the other parties, Miss Collier and Mr Stewart, because, of course, if there had been merely a preliminary hearing they would not be here. So I can quite see that Mr Malkan will need time to prepare himself for a conventional preliminary hearing of his appeal. That is to take place, but it is not to be accompanied by any of the matters that he seeks in his directions hearing requests paragraphs (i) to (ix) but is to go ahead simply with him in the ordinary way illustrating or seeking to illustrate to those who hear the preliminary hearing that he has some arguable point of law that is fit to go to a full hearing. So that preliminary hearing will take effect but without the further directions in his favour which he has sought.