EAT/23/00 MR D C D'SOUZA v (1) MR HERMAN OUSLEY (2) LONDON BOROUGH OF LAMBETH [2001] UKEAT 23_00_2205

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 23_00_2205

Case No Appeal No. EAT/23/00 & EAT/110/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

EAT/23/00 MR D C D'SOUZAAPPELLANT

(1) MR HERMAN OUSLEY (2) LONDON BOROUGH OF LAMBETHRESPONDENT

EAT/110/01 MR D C D’SOUZAAPPELLANT

LONDON BOROUGH OF LAMBETHRESPONDENT

Before

Mr Justice Lindsay

Date 22 May 2001

[1]APPEARANCES For the Appellant MR D C D'SOUZA IN PERSON For the Respondent THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) I will deal firstly with the matter which is listed as

EAT/23/00

. I have before me an appeal from the Registrar's order striking out allegations of bias or improper conduct in the Notice of Appeal. The Notice of Appeal was lodged by Mr D C D'Souza in the matter D'Souza v(1) Mr Ousley and

(2) The London Borough of Lambeth.

[2]The matter has a remarkable procedural history. On 16 January 1990, be it noted, Mr D'Souza's employment ended. On 2 July 1997 he issued an IT1 for sex discrimination and unequal treatment against the two Respondents, Mr Ousley and the London Borough of Lambeth. On 25 July 1997 Lambeth and Mr Ousley put in an IT3 that claimed, amongst other things, that the IT1 was out of time and hence that the Tribunal had no jurisdiction to hear it and, moreover, that it was in any event frivolous and vexatious. On 19 September 1997 the IT1 was struck out as being out of time.

[3]I do not need to set out the whole intervening history but there was a considerable intervening history of applications for review and appeal and so on, but, coming forward to what more immediately concerns me, on 25 October 1999 a fourth application for a review was refused by the Employment Tribunal. On 6 December 1999 Mr D'Souza lodged a Notice of Appeal against that refusal of the fourth application for review and, amongst the grounds on which he sought to rely, was that there had been bias at the Employment Tribunal. On 17 January 2000 the Employment Appeal Tribunal pointed out that the PHD as it is called, the Preliminary Hearing form, had not been received from Mr D'Souza and the Employment Appeal Tribunal asked him to complete one and also to give reasons for why it was late. The point was also made in a letter of that day that under the Employment Appeal Tribunal Practice Directions, Practice Direction paragraph 9, an affidavit was normally required if allegations about the misconduct about the Employment Tribunal, bias for example, were to be persisted in. On 9 March the Employment Appeal Tribunal, having heard nothing, indicated that an affidavit needed to be lodged by 23 March. On 20 March 2000 Mr D'Souza said that he needed 3 weeks from receipt. I had better refer to the particular letter of which my note is inadequate. He wrote to the Employment Appeal Tribunal to request an extension of time to submit a statement of truth. He said that he was keen that the appeal should be heard as expeditiously as possible and asked for a prompt reply. On 24 March the Employment Appeal Tribunal extended time to 14 April. On 21 July there was a reminder from the Employment Appeal Tribunal and the Employment Appeal Tribunal had been using language that suggested an affidavit was required but on 24 July 2000, Mr D'Souza made the point that a statement of truth should suffice. On 1 August the Employment Appeal Tribunal said that a sworn statement of truth would suffice but it was looking for the matter to be sworn . On 9 August 2000 Mr D'Souza said that, surely, matters did not need to be sworn. On 16 August the Registrar required a sworn statement of truth within 21 days. On 13 September the Employment Appeal Tribunal, having heard nothing, sent a reminder. On 2 November 2000 it was indicated by letter to Mr D'Souza that his allegations of bias would be struck out if no affidavit or sworn statement of truth was received. That led, because nothing was heard, to an unless order on the 27 February 2001 which said:

"It is ordered that unless an affidavit is received by the EAT within 14 days of the seal date of this order all allegations of bias or improper conduct contained in the Notice of Appeal will be struck out."

Mr D'Souza let time go by and it was not until 8 March that he answered, asking the Registrar to reconsider the matter. On 22 March the Registrar indicated that a further 7 days from that day would be given but that a sworn affidavit would be required. The letter said:

"As a regular user of this Court you are aware that allegations of bias must be accompanied by a sworn affidavit in accordance with paragraph 9 of the Practice Direction. Registrar's order of 27 February 2001 stands with the time extended to 7 days from the date of this letter."

Again nothing was heard and on 18 April the order was made that the allegation of bias were struck out. Then, on 30 April, there was the Notice of Appeal with which I am concerned.

[4]Mr D'Souza is loth to lay out such money as is necessary for the swearing of an affidavit and draws attention to the fact that in the High Court of Justice the rules have changed and that affidavits are no longer as essential in all conditions as they used to be and that statements of truth are acceptable. He also wishes to mount a much grander argument, that the requirement that there should be an affidavit which is sworn, or anything which is sworn, (which therefore incurs a cost, however relatively small) is discriminatory against blacks, he says, because, he says, blacks are less likely to have enough money or to be employed so as to enable them to acquire enough money to be able to pay the modest charge which swearing involves. Miss McKie on behalf of both Respondents has put in a thoughtful skeleton argument dealing with that rather grand way of putting the case but it seems to me that really I have no need to go into a case of such nature which in any event Mr D'Souza has no statistics to prove. To allow an adjournment in order for him to have the opportunity of acquiring the necessary statistics seems to me utterly disproportionate to the case.

[5]I will allow the appeal against the Registrar's order and restore the accusations of bias to the Notice of Appeal, noting, as Miss McKie fairly draws to my attention, that in any event Practice Direction 9(3) says only that such directions, that is to say directions in relation to complaints of bias, will: "normally" include the swearing and filing in affidavits by the complainant and so on, which expression itself suggests that there is no immutable rule that there shall in every case be an affidavit, properly-so-called, sworn. However it is important that Mr D'Souza puts down in writing not only particulars of the claim of bias but an indication that what he is claiming is said by him to be true and I suggested in the course of argument to Mr D'Souza that particulars supported by a statement of truth should be capable of being furnished by him within a relatively short time and, as I understand it, he does not oppose that, nor does Miss McKie. So what I shall do, having allowed the appeal and restored the accusation of bias, is to order that within 21 days from today Mr D'Souza is to send to the Employment Appeal Tribunal and to the other parties, in writing and in best detail that he can achieve, particulars of all acts and omissions or remarks and any conduct that he relies upon in support of his allegation that, in relation to the Employment Tribunal's decision of 25 October 1999, the Chairman exhibited or acted under the influence of bias against Mr D'Souza, whether bias based on race or otherwise, or that there could be seen to be any real danger that the Chairman had so acted. If the complaint by Mr D'Souza is intended to include anyone but the Chairman as being biased then the particulars must cover such other individuals also in the same way. The particulars must be in writing signed by Mr D'Souza and Mr D'Souza must state that they are true insofar as they are within his own personal knowledge, information and belief and, if they are outside his own personal knowledge, information and belief, then he has to say that they are true to the best of his knowledge, information and belief and identify from whom or whence the information which he says he believes has come to him. If those particulars, identified and verified and signed, are not in the hands of the EAT and the other parties within 21 days from today then the bias claim in the Notice of Appeal will be struck out without further ado unless some good reason for the delay can be shown.

[6]The matter has already been long delayed and I must emphasise to Mr D'Souza in particular that the need for these particulars is not some form of shadow boxing or some procedural quirk that is not truly necessary but it is in order that the Chairman can be asked to comment in detail on what by then will be, a detailed complaint. There is no point in approaching the Chairman with vague questions of bias; it becomes far more useful if the Chairman knows that it is said that he said such and such or did so and so. He can then respond in a much more focused way and that is why the particulars are necessary and it is obvious why Mr D'Souza has to state that his particulars are true because this is a serious complaint that merits a serious investigation.

[7]I have so far dealt with the case ending up in its number 23/00 where there are 2 Respondents but there is an almost identical case the number of which ends up 110/01 where Mr D'Souza is again the applicant but the London Borough of Lambeth is this time the only Respondent. The chronology is very much the same and objections taken by Mr D'Souza are very much the same and I shall make a corresponding order for the setting aside of the decision of the Registrar striking out the bias parts of the claim and to that extent allowing the appeal but I make a corresponding order for particulars in exactly the same way as in the case as I have first described. Miss McKie is there anything I can do on those 2 fairly limited appeals? Sir, I don't think so. Mr D'Souza, anything else on those 2 appeals? In respect of case 110 I had in fact submitted an affidavit originally and the Chairman commented on that but it was Judge Peter Clark in the EAT he said he did not believe it, so I am not sure what I should do, that I should repeat that or ? You have got to give the particulars of your present Notice of Appeal. The Notice of Appeal is just about not hearing my review application, so I do not need to repeat what I have already given I suggest. No, you have got to give the details corresponding to the details I set out in the first case relative to your present claims of bias or misconduct at the Employment Tribunal. There was no hearing in either case sir, I will just … Set out whatever claim you make, I am not making that case for you. If you have no particulars to add or to specify well, so be it, there will be no particulars.