MR A H TOOFANNY v PARKSIDE HEALTH NHS TRUST [2001] UKEAT 300_01_2103
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent Mr A Moorthy (Solicitor) Messrs Beachcroft Wansboroughs Solicitors 100 Fetter Lane London EC4A 1BN MR RECORDER LANGSTAFF QC This is an interlocutory appeal which arises in a claim by Mr Toofanny for what is called breach of contract inclusive of race relations matters, in his IT1. At the heart of it there is a grievance which he had in respect of his demotion from Grade H to Grade G in the course of his service for the Parkside Health NHS Trust.[2]A directions hearing is listed for next week. The case is one of some antiquity now, by comparison with many, and the hearing which is ordered for 29 March is a hearing which is the last in a list of hearings which it has been proposed to hold, in order to give directions as to the conduct of the substantive hearing of the application before the Employment Tribunal.[3]Thus a directions hearing was, we understand, originally listed on 12 April 2000; that was postponed. It was listed again on 11 June, and then on 31 August 2000, and the Appellant in each case sought postponements. He has not been well, and indeed, it is unlikely from his correspondence that he will be fit and well enough to attend a hearing on 29 March, in person, although he fully anticipates recovery in time to attend the hearing of the application which he has made, which is set for September.[4]In the submissions which he has made to us, seeking, in effect, that we should set a different date for the directions hearing, or at least allow an appeal against the hearing of one next week, the Appellant has indicated his desire to be present in person, and has made reference, as part of his argument, to Article 6 of the European Convention on Human Rights. That requires that in the determination of his civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. We do not think that a directions hearing, though important in the conduct of the case, is a hearing which determines civil rights and obligations.[5]Even if we were wrong in that, we do not read the entitlement to a fair and public hearing as necessitating the presence of an individual litigant, in person, at a directions hearing. The procedures in the civil courts, for instance, provide for telephone attendances at interlocutory hearings, or a number of interlocutory applications to be made and determined on paper, and the volume of documentation, which has been very helpfully supplied to us by the Appellant in the present case, together with submissions which go to considerable length, indicate to us that he is well able, on paper, to deal with the issues and directions which might be proposed.[6]Moreover, any reliance on Article 6 must bear in mind two further facts: first, it requires a hearing within a reasonable time, and it seems to us, a directions hearing having first been proposed a year ago, or thereabouts, a reasonable time has more than elapsed.[7]Secondly, Article 6 does not just give rights to one party. It is entitled to be relied on by both. The question is what is fair as between the parties, not what is fair just to one. In other words, it looks to a balance of rights and interests.[8]We are faced with an appeal against a decision as to timing. There is no dispute that a directions hearing is needed. Timing is essentially a question of the discretion of the Chairman; we have to approach the exercise of that discretion to ask whether or not there is any factor which he appears not to have taken into account, which he should have done, any factor he took into account which he should not have done, or whether his decision is taken as a whole, simply unreasonable. We can find no such evidence, and accordingly on that basis, this appeal will have to be dismissed.[9]Nonetheless, in the interests of understanding the background, we invited Mr Moorthy, who appears for the Respondent to help us. The Appellant, as will be obvious from what I have already said, is unable to be present and has indicated that he wishes the appeal to proceed without him. We invited Mr Moorthy to tell us why the directions hearing had to be next week, rather than at some later time, when there might be a greater possibility that the Appellant would be present. It is plain that a first step in the case needs to be the identification of the issues. They have not yet been identified. Plainly they should be, at the soonest possible date. I do not see any reason why those issues cannot be identified with the assistance of the Appellant in writing, and it is consequent upon that that witnesses' documents and timetabling will need to be worked out.[10]If there is any difficulty with the result of the directions hearing, then of course the Appellant, or for that matter the Respondent, may each raise further considerations with the Chairman of the Tribunal; it is a matter for him whether he entertains those or not. Having listened to what Mr Moorthy has had to say, we think that there are many reasons why it may be thought that a hearing next week is sensible. Accordingly, there being no arguable point of law in this appeal, there being no proper ground for interfering with the exercise of the discretion, we dismiss the appeal. Mr Moorthy, it would be helpful, I think so far as the Appellant is concerned, if you let him know what directions you propose, well in advance, so that he is in a position to respond in writing and make the directions hearing effective, rather than one-sided.