DR A K SINGH v 1) NHS EXECUTIVE 2) LAMBETH, SOUTHWARK & LEWISHAM HEALTH AUTHORITY 3) GENERAL MEDICAL COUNCIL [2001] UKEAT 709_01_0210

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 709_01_0210Case No Appeal No. PA/709/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR A K SINGHAPPELLANT1) NHS EXECUTIVE 2) LAMBETH, SOUTHWARK & LEWISHAM HEALTH AUTHORITY 3) GENERAL MEDICAL COUNCILRESPONDENT
Before
Mr Justice LindsayDate 2 October 2001
[1]APPEARANCES For the Appellant The Appellant in person For the first Respondents MR S WILSON (of Counsel) Instructed by: Office of the Solicitor Department of Social Security and Health 48 Carey Street London WC2A 2LS For the second Respondent No appearance or representation by or on behalf of the Respondent For the third Respondent No appearance or representation by or on behalf of the Respondent MR JUSTICE LINDSAY (PRESIDENT) I have before me today an appeal in the matter Dr A K Singh as against, as first Respondent, the NHS Executive, as the second Respondent, Lambeth, Southwark and Lewisham Health Authority and as third Respondent, the General Medical Council. Dr Singh is here in person. The NHS Executive, the nominal first Respondent, is, strictly speaking, not a legal entity but merely a department of the Department of Health, and appears by Mr Sean Wilson. Lambeth, Southwark and Lewisham Health Authority which I shall simply call "Lambeth", does not appear, and the General Medical Council does not appear.[2]On the face of things the appeal is against the Registrar's decision refusing Dr Singh an extension of time to appeal against a decision of the Employment Tribunal which dismissed the case that he brought as against Lambeth and awarded costs against him in that part of the case. Dr Singh's submissions have been confusing in the sense that he has told me that he does not seek an extension of time; that he is not contesting the Registrar's decision; that he has accepted the refusal of an extension of time, but that, he says, the proper course should be that this appeal should be postponed and adjourned until a continuing case against the NHS Executive and the General Medical Council has been heard, and then, if necessary, the present appeal should be revived.[3]In order to explain the matter I shall first treat the matter before me as being what it appears to be, namely an appeal to be heard and dealt with today against the Registrar's Order. I therefore set out the chronology in some detail. On 7 October 2000, an IT1 from Dr Singh was received by the Employment Tribunal. It was claiming for:
"Equal pay opportunity, unfair dismissal, harassment, discrimination and victimisation over the years"
Dr Singh had no representative identified as acting for him. The box on the form, box 5, which says:
"Please give the name and address of the employer, other organisation or person against whom this complaint is being brought" was very fully filled out by Dr Singh in handwriting and it would seem that the Respondents-to-be were the "
NHS Executive, Department of Health, Chief Executives, Lambeth, Southwark and Lewisham Health Authority, General Medical Council with their agents and servants etc." It was not perhaps the clearest formulation of a box 5, but there would seem to be more than one Respondent, namely the NHS Executive, Department of Health as one Respondent, Lambeth, Southwark and Lewisham Health Authority as a second, and General Medical Council as a third, leaving aside questions such as whether Chief Executives or their agents or servants would be truly regarded as respondents.[4]On 12 October the Employment Tribunal wrote to Dr Singh saying to him that his IT1 would be sent to each Respondent. So at that stage the ET realised there was more than one Respondent. On 2 November, Lambeth put in an IT3 by a firm of solicitors, Capsticks, who were acting for it, and they said, as to unfair dismissal, that Lambeth was not the employer. So far as concerned the claim for racial discrimination, again they said that Lambeth was not the employer and they made the point that in any event, according to their argument, Dr Singh was out of time with his claim; he had been removed from the appropriate medical register in June 2000, and his claim had only been lodged on 7 October. They said that the case against Lambeth was, in any event, res judicata by reference to some other proceedings and they invited the Employment Tribunal to strike the case out.[5]On 15 December, Dr Singh wrote to the Employment Tribunal saying that the true Respondents were the National Health Service Executive and the General Medical Council. He seemed, in other words, to be accepting the fact that Lambeth was not the employer and it would have looked perhaps, on a reading of his letter of 15 December, that he was content that there should be no proceedings further against Lambeth. On 19 December he prepared and swore an affidavit resisting any attempt that his case should be struck out.[6]On 6 January of this year, Dr Singh wrote to the Employment Tribunal saying that he would not be available in February and March of the year and he objected to the case being regarded as one against Lambeth, notwithstanding that he had mentioned that in the original Box 5. He said in his letter of 6 January inter alia :
"I must clarify that I, as a NHS GP, did not have the contract with the local Health Authority, but in fact did with the NHSE and GMC." and a little later: "
This is a NHS case relating to my livelihood, discrimination, victimisation of me and my family/practice etc. Hence I strongly object to you now altering and writing the case as "Dr A K Singh v Lambeth, Southwark & Lewisham Health Authority, especially after the cases such as…." And then he refers to some numbered cases, so that he seems, again, to be saying that the case was not against Lambeth, and, indeed, the heading that he writes under, in his letter of 6 January, is by reference to a case "Myself -v- the NHSE & GMC" So that, again, he gives the impression there that he would be content that the matter should not proceed against Lambeth.[7]On 14 January he wrote and asked that the case should continue without Lambeth being involved. Again he heads the letter by reference to a case number and then adds:
"Myself -v- the NHSE & GMC" and a little later he says: "
I am also advised, in particular now, to withdraw my claims against Lambeth, Southwark and Lewisham Health Authority from this case, most simply because of your misdirections and for the sake of clarity. Hence I am confirming just to do that now in writing and continue with the case without Lambeth, Southwark and Lewisham Health Authority." again giving the impression that he not only would be content that Lambeth should not be a party, but that, indeed, he would be discontent if they should remain a party.[8]On 23 January, the Employment Tribunal wrote to Dr Singh, and it is quite clear from the letter that he had been told of a hearing on 13 February 2001. I mention this because, in passing, at one point, although he seemed later to abandon the point, Dr Singh said that he had no idea that there was to be a hearing on 13 February 2001. The letter says - and it is addressed to the address which he had given in his IT1 (his medical practice centre address in Baildon Street, London SE8):- "The Chairman (Ms V Wallis) has instructed me to write to you that she remains of the view that Preliminary hearing is necessary in this case. If you were seeking a postponement of the hearing on 13 February 2001, please explain when you pre-arranged and why you cannot re-arrange them. Your request will then be considered further, together with the views of the Respondent's."[9]It is quite plain that not only had there been previous notice of a hearing on 13 February but that in some way Dr Singh had suggested that that date was going to be difficult for him; he is here asked to explain why that should be so and why his conflicting appointments should not be re-arranged. However, there is no indication that any further correspondence took place on that point; no later objection appears to have been made to the hearing continuing on 13 February 2001.[10]The Tribunal, however, remained a little confused, and on 24 January asked for clarification of whether the only Respondent was the GMC. It was not a very appropriate question because Dr Singh had made it clear that he wished to continue as against the NHS Executive. Anyhow, that was the question that was raised, and on 26 January, Dr Singh answered it, again heading the letter with a case reference:
"Myself -v- the NHSE & GMC" and he says: "
I again remind you on the contents of my letters of 6 and 14 January 2001 and clarify in most clear terms that the case remains as above"…… and that is a reference to the heading, namely as against the NHSE and the GMC, ……."as originally acknowledged by yourselves"[11]On 30 January, Dr Singh asked the Employment Tribunal to serve the papers on the NHSE and the GMC. On 12 February, he acknowledged that Lambeth and the GMC were not his employers; he said that he would be away from 18 February 2001. He heads his fax of 12 February, actually sent on 13 February, with the reference, by now conventional:
"Myself -v- the NHSE & GMC"
He says:
"As confirmed in my earlier letters I agree with all concerned including Messrs Capsticks that neither the Lambeth, Southwark and Lewisham Health Authority nor any other Health Authority, and/or the GMC, Deaneries or MPS/BMA/CRE are the employers of Principal NHSGPs, but instead it is the NHS, Dept of Health."
A little later he says:
"Due to unavoidable circumstances, I had to reschedule my departure and now away from 18 February 2001. I look forward to hearing from you on my return." and then as a footnote: "
Faxed on 13 February 2001 at 9.30 am additionally, and confirmed received OK and clear on phone"[12]So, on the face of things, he was not going away until 18 February and had been advised of the hearing on 13 February and on 13 February the case was heard at London South, before a three person panel under the chairmanship of Mr I McInnis. It is noted that the Applicant, Dr Singh, did not appear and was not represented and the Respondent, Lambeth, was represented by a solicitor. The unanimous Decision of the Tribunal which was sent to the parties - and this is a relevant date - on 2 March 2001, was:
"1) the Tribunal does not have jurisdiction to consider the Applicant's claim against Lambeth Health Authority and that claim is dismissed; 2) the Applicant has acted frivolously and vexatiously and the Applicant is ordered to pay Lambeth Health Authority costs of today's hearing in the sum of £500.00; 3) the Originating Application be re-served on the NHS Executive and served on General Medical Council."
[13]On 18 February, it would seem, Dr Singh left for India. His son's wedding and the celebrations connected with it were spread over a period from 24 February to 26 February in New Delhi and naturally he would wish to be there and no doubt was.[14]On 31 March of this year the Department of Health lodged an IT3. They said that there was no contract with Dr Singh, and that no questions of equal pay, unfair dismissal, breach of contract or race discrimination were available to Dr Singh as against the Department of Health. They made the point that no wrongdoing was identified on the Department of Health's part; they took the point that Dr Singh's claim was in any case out of time and they, too, relied on cause of action estoppel.[15]On 19 April of this year the GMC, by its solicitors Field Fisher, put in its IT3. Again, as had other parties, they took the point that there was no jurisdiction. There had been a decision of June 2000 which had been upheld by the Privy Council that indicated that, according to the GMC, it had acted properly in its dealings with Dr Singh. They, too, took the point that in any event Dr Singh's claim was out of time. They said that the latest relevant date of any material event had been 13 July 2000 and the proceedings had not been issued until 13 March 2001. They indicated that there had been, in the Privy Council's proceedings, serious findings in relation to the standard of care on Dr Singh's part and that he had been suspended in July 2000 and they, too, requested a preliminary hearing as to jurisdiction. I must emphasise that issues of that kind are not currently before me and I am not in any way concerned with whether Dr Singh has been or has not been a competent doctor.[16]On 4 May of this year the Chairman of the Employment Tribunal directed a preliminary hearing as to the time limit argument, as between Dr Singh on the one hand and the GMC and the Department of Health on the other, and it cannot be over-emphasised that that hearing has not yet taken place. Notice of that hearing will no doubt be given in due course and the hearing will ultimately take place but that is not a thing I am in any way concerned with I am only concerned with the issue that I indicated, which is one between Dr Singh and Lambeth.[17]On 5 May, Dr Singh put in a response to the GMC's argument and to the Department of Health's argument, and again, as I have mentioned, I am not concerned with the issues that there are raised, but I am concerned with the next document in the chronology which is one of 15 May of this year, the Notice of Appeal which Dr Singh lodged with the Employment Appeal Tribunal against the Decision which had been promulgated on 2 March of this year. The Notice of Appeal is one page long; part of it is, of course, standard form print, and item 3 says:
"The Appellant appeals from ( here give particulars of the decision of the employment tribunal from which the appeal is brought, including the date) :-"
And that is, of course, the standard printed part, and what has been typed in by Dr Singh is this:
"Employment Tribunal, London South dated 2 nd March 2001 received 2 May 2001. I informed the tribunal; been away and unwell."
So he was there claiming that he had received the Extended Reasons promulgated on 2 March 2001 only on 2 May 2001. He has two grounds, three perhaps, in paragraph 6 which in print says:
"The grounds upon which this appeal is brought are that the employment tribunal erred in law in that (here set out in paragraphs the various grounds of appeal):-" and he has typed in: "(a) the Applicant informed the Tribunal, in most clear terms, that he was away, and not available in February/March 2001. In spite of this the Tribunal has acted in a manner that no reasonable Tribunal could have, to reach the decision and was/is therefore perverse. (b) Lambeth, Southwark and Lewisham Health Authority are the servants and agents of NHSE Dept of Health along with the GMC and Deaneries, i.e. Secondary (additional) action who have produced 'sham pleadings', purporting to be the Employer and No (1). In all cases the Tribunal must give proper and genuine opportunity to argue against the proposed order/decision see ……….." and then there is a series of references to rules and an authority, and then as, perhaps, a third ground: "(c) In any case, please see the enclosed documents for details."
On 18 May the Employment Appeal Tribunal wrote to Dr Singh saying that his Notice of Appeal was received thirty two days late and that if he wished to continue with the matter, he would need to apply for an extension of time within fourteen days.[18]On 21 May, under the heading "Particulars of the Grounds on which Extension of Time is Sought" he says, inter alia , this:
"2. The clear and concise reasons are: (1) I quite clearly wrote that I was not available in February/March 2001 on an important and prearranged assignment i.e. son's wedding … (II) I was confirmed in that the Employment Tribunal accepted my request and they were aware of everything ….. (III) The Employment Tribunal and Others were aware of my programmes/request and knew that I was not attending, quite in advance including on the day i.e. from 6 January 2001 onwards."
A little later, he says in (VI):
"(VI) The decision/order dated 2 nd March 2001 could only be received on my return. The Tribunal and Messrs Capsticks were well aware of this with everything else. See the reasons falsely stating that the applicant did not reply to the letter of 24 January and did not comply with the order of the Tribunal" and then I am not going to set out all the grounds, but (XI) says: "
The Applicant is and has been unwell, under hospital treatments, with depression and intractable chest infection".[19]On 6 June, Messrs Capsticks indicated that they resisted any extension of time being granted for the lodging of the Notice of Appeal. On 14 June the Department of Health also indicated they resisted any extension of time. On 3 July, Dr Singh lodged submissions as to an extension of time being granted to him, and those were before the Registrar on 5 July, when she made an Order that, after setting out the history, to some extent, of the matter said:
"IT IS CONSIDERED that there has been shown no exceptional reason why an appeal could not have been presented within the time limit laid down in paragraph 3(2) of the Employment Appeal Tribunal Rules 1993. IT IS ORDERED that the application for an extension of time in which to present the Notice of Appeal is refused."
And that was after reference to the familiar case (in this part of the law) United Arab Emirates v Abdelghafar .[20]On 10 July of this year, and then more recently, on 3 September, Dr Singh has put forward arguments which in part, are intended, as it would seem, to support an appeal, against the Registrar's Order. Thus, for example, on 10 July he begins:
"I am in receipt of the sealed copy of the decision order of 6 July on 9 July 2001 and wish to appeal as in Practice Direction 1996, rules 3(4) and 3(6)."
I might add that that sheet of paper of 10 July indicates that he arrived in Delhi on 19 February 2001.[21]That, I think, sets out enough of the chronology to lead to an ability to understand that which follows. It seems to me it would be proper to be especially receptive of arguments from Dr Singh if the hearing of 13 February 2001 was one which was fixed for a date when it was known that he would not be able to attend and when it was known, perhaps also, that he would be unlikely to have arranged representation. However there is no acceptable evidence of ill health leading to some inability to attend the hearing on 13 February 2001. He was, after all, able to go to India a few days later and thereafter there to celebrate his son's wedding. There is an almost illegible medical certificate of 12 January 2001 but it does not overcome or explain that throughout February 2001 he seems to have been well able to deal with his affairs by correspondence and by fax, and was able, as I have mentioned, to attend family celebrations and was well enough to travel, presumably by air, to India. Moreover the contemporary fax indicates that he was not going to India until 18 February and hence on the face of things was well able to attend, had he chosen to attend, the hearing on 13 February. He himself says that he arrived in India on 19 February, which is entirely consistent with his departing from the United Kingdom only on 18 February, and therefore being able to attend the hearing, had he chosen to do so, on 13 February.[22]I might add that a degree of care has to be taken because there are two versions of the letter of 12 February faxed on 13 February. The version I read earlier mentioned that he was "now away from 18 February 2001" but Messrs Capsticks have a version where it would look as if he was away from 13 February 2001. However there is no doubt but that the clearer version plainly indicates that he was away from 18 February 2001, rather than from 13 February. So Capsticks somehow got a poor copy or even an altered copy, but I do not need to go into that.[23]The contemporary fax of 13 February dated 12 February is entirely consistent with a voluntary decision by Dr Singh not to attend on 13 February. He, as I have mentioned, conceded that Lambeth was not his employer, and he said that he looked forward to hearing from the Employment Tribunal after his return, which would be an odd way of expressing himself if he was intending to attend the hearing that day.[24]These reasons indicate that the hearing of 13 February cannot be regarded as one which was unfairly foisted upon Dr Singh; it was not a hearing at which he could not attend, or a hearing for which it was known that he could not obtain representation. So far as one can tell, it was a hearing which he chose not to attend and therefore there is no particular reason to be unusually receptive of an argument that there should be an extension of time.[25]Turning to that, the Decision with Extended Reasons was sent to the parties on 2 March 2001 and the forty two days period, which itself is generous, therefore expired on 14 April and the Notice of Appeal was not received until 15 May, thirty two days late. The crucial period which needs to be explained is the forty two days from 2 March 2001. We already cited the reasons which Dr Singh gives for delay. The son's wedding on 24 - 26 February cannot, of course, explain the delay after 2 March. The knowledge, if any, of the Employment Tribunal of the son's wedding adds nothing to explain the delay in lodging a Notice of Appeal with the Employment Appeal Tribunal. The fact that he did not attend on 13 February is no reason for not appealing promptly.[26]If, and I would emphasise the word 'if', Dr Singh did not receive the Extended Reasons until 2 May 2001, on his return from India, well, that is only because of the inadequacy of his own arrangements for the interception or reception of his mail. People who choose to take holidays, or to attend, naturally enough, celebrations abroad, or leave their usual address, do so at their own risk if they make no fresh arrangements for mail to be read for them, or to be forwarded on to the new address. There is no suggestion that the Employment Tribunal had been told of a different address to which the Extended Reasons needed to be sent but that they had failed to honour that request. Dr Singh's address for service of Employment Tribunal documents therefore remained that specified in his IT1, the "Baildon Street, SE8" address - see Employment Tribunal Rule 20(3)(c)(i).[27]As for any ill health, it is unproven relative to the crucial period from 2 March 2001. There are two doctor's certificates, as at 19 May 2001, but they do nothing to explain the earlier delay; the forty two days had by then already expired, and the Notice of Appeal had by then already been received. Nor was there any explanation of how it came about that, given that Dr Singh was well able to compose and lodge a Notice of Appeal on 8 May 2001 - the date on it - he had not been able to do so earlier; these reasons alone compel a refusal of an extension of time.[28]As for the merits of the underlying appeal, that is to say the merits of the appeal against the Decision of the Employment Tribunal, they normally play only a small part in a consideration of whether there should be an extension of time but here, as it seems to me, they are so close to hopeless that if they were to have any weight at all they would weigh against any extension of time. There is no point in extending time for an appeal which has every prospect of being a loser; it would merely encourage false hopes and lead to a waste of time and money and to undue anxiety.[29]I have already read the grounds which Dr Singh set out in his Notice of Appeal against the Employment Tribunal's Decision - the Notice of Appeal of 8 May - and the first was that the Applicant informed the Tribunal in most clear terms that he was away and not available until February/March 2001. In fact, as we have seen, he was not away from the United Kingdom until 18 February, when he left for India, and he made no arrangements that the Extended Reasons should be sent to some different address.[30]He also said - again I have cited this earlier - that Lambeth, Southwark and Lewisham Health Authority are the servants and agents of the NHS. This appeal is only concerned with the position as between Dr Singh and Lambeth and I should say that the Employment Tribunal, in its reasoning, gives compelling reasons for there being no good cause of action against Lambeth. As I cited earlier from the correspondence, that was a position which seemed, at one stage any rate, not to have been opposed by Dr Singh.[31]So, far from the view of the merits of the appeal against the Employment Tribunal assisting Dr Singh, if they come into play at all it seems to me they only make an extension of time more difficult to justify. I must bear in mind and do, the familiar case of Abdelghafar , to which I have made earlier reference, and I have in mind also the case in the Court of Appeal Aziz v Bethnal Green .[32]I must dismiss the appeal against the Registrar's Order I grant no extension of time, and therefore the Notice of Appeal of 8 May 2001 is, and remains, defunct. So far, as I mentioned earlier, I have been treating this as what it would seem to be - an appeal to be dealt with, here and now, against the Registrar's Order, but, as I mentioned also at the beginning, Dr Singh has several times said that he does not seek an extension of time, and that he is not contesting the Registrar's Decision but that he indicates that his wishes are that this appeal should be postponed.[33]It is not entirely clear to what date or event it should be postponed, but at any rate it should be postponed, as I have understood Dr Singh's wishes, at least until the Employment Tribunal has heard the case between him and the NHS Executive and General Medical Council. That seems to me a quite hopeless application. The matter has been set up for today as an appeal to be heard today. The parties, Lambeth and also the NHS Executive and General Medical Council, are all entitled to know, and particularly Lambeth are entitled to know, whether, ultimately, there is to be an appeal against the Decision of 2 March 2001. It is essential that if a case goes forward everyone knows who is party to it. If today's appeal is merely adjourned, doubt would remain about whether there would ever be a contest in which Lambeth was to be a party.[34]I see no ground for adjourning today's hearing, no ground for not dealing today with the appeal against the Registrar's Order. If today's application was properly to be regarded as merely an application for an adjournment, I would refuse it, and so, refusing the adjournment, I go back to the substance of the case, and, as I have indicated, I dismiss the appeal against the Registrar's Order. I grant no extension of time and accordingly the Notice of Appeal of 8 May remains defunct.