MR S DEMAN v 1) ASSOCIATION OF UNIVERSITY TEACHERS [2001] UKEAT 1311_00_0606

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1311_00_0606Case No Appeal No. EAT/1311/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S DEMANAPPELLANT1) ASSOCIATION OF UNIVERSITY TEACHERSRESPONDENT
Before
His Honour Judge Peter Clark Ms G Mills Mr J R RiversDate 6 June 2001
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON JUDGE PETER CLARK In these proceedings, currently before the London Central Employment Tribunal, Mr Deman complains of racial discrimination, victimisation and sex discrimination against the named Respondents. The substantive hearing of the case was originally set for 10 days, between 18-29 September 2000.[2]It seems that by letter dated 1 September 2000, the Treasury Solicitor indicated to the Respondents' solicitors that the Solicitor General had given his consent to the making of an application to the Employment Appeal Tribunal for a restriction of proceedings order to be made against Mr Deman under Section 33 of the Employment Tribunals Act 1996 , the vexatious litigant procedure in the Tribunal system.[3]In those circumstances the Respondents applied for a stay of these proceedings to the Tribunal, pending that application under Section 33 being made. The application for a stay was considered by a Chairman, Mr Rabin, sitting alone on 4 September 2000. On that occasion, each side was represented by Counsel.[4]Having considered the rival submissions, the Chairman granted a stay, but not on an open-ended basis. He granted the stay until 3 October 2000 and added this at paragraph 9 of his reasons:
"I therefore order a stay of those proceedings for one month and if no application has been made under Section 33 by one month from today's date i.e. by 3 October 2000, then it will be open to the Applicant's representatives to apply for the hearing of this case to be reinstated."
[5]That order, together with the Chairman's extended reasons, was promulgated on 11 October. The immediate effect of the order was that the 10-day hearing fixed to begin on 18 September was postponed. Against that order Mr Deman has brought his appeal.[6]We raise with him the question as to whether the appeal was now wholly academic because 3 October had passed, but he made the point that on 4 September an application was indeed made under Section 33 to the Employment Appeal Tribunal and, as he read the Chairman's order, understandably, the Applicant was then prevented from applying for the hearing of the case to be reinstated, in the terms of paragraph 9 of the Chairman's reasons.[7]In any event he submits that the order made by the Chairman was wrong in law and further that the Chairman was biased against him in making that order, the Chairman being one of a number of judicial officers at the London Central office who are in Mr Deman's words:
"Institutionally racist"
[8]Before returning to those two grounds of appeal, there has been a further, significant turn in this story, as Mr Deman told us today. That is that on 9 February 2001, the Treasury Solicitor wrote to the Employment Appeal Tribunal indicating that the Solicitor General had changed his view about the Section 33 application and that it was now withdrawn.[9]That prompted us to ask Mr Deman whether he had notified the Employment Tribunal of the withdrawal of the Section 33 application, coupled with an application for the hearing of this case to be restored. To our collective amazement he tells us that no such communication has been made with the Tribunal.[10]At one stage it appeared that he was telling us that he had been advised not to do so until this appeal had been determined but later it appeared that he had not received any advice since 9 February 2001.[11]Under these circumstances we are left in the position that Mr Deman, for reasons which we cannot begin to penetrate, has failed to do that which any litigant generally interested in pursuing his case would do. That is informing the Employment Tribunal that the Section 33 application has been withdrawn and asking for this case to be restored for hearing.[12]In those circumstances this appeal is plainly academic. However, in deference to the argument advanced by Mr Deman, we should say first that we have no hesitation in concluding that the Chairman reached a permissible conclusion when he ordered the temporary stay of proceedings at the hearing on 4 September. He considered the arguments on both sides, weighed them and exercised his discretion in a permissible way.[13]So far as the complaint of bias is concerned, we can see no evidence of bias or the appearance of bias in the decision which was reached by Mr Rabin. We forebear from commenting on the lurid language which Mr Deman regards as appropriate to describe members of the judiciary. We say no more in this case but that his appeal is dismissed.