A v B [2002] UKEAT 0763_01_2301

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0763_01_2301Case No Appeal No. EAT/0763/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
AAPPELLANTBRESPONDENT
Before
Mr Recorder LangstaffLord Davies of CoityDate 23 January 2002
[1]APPEARANCES For the Appellant MR KEITH BRYANT (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR RECORDER LANGSTAFF QC This is an appeal from a decision of an Employment Tribunal sitting at Leeds, the reasons for which were promulgated on 30 April 2001. By those reasons the Tribunal dismissed the Appellant's complaints that he had been unfairly dismissed and wrongfully dismissed. Those findings are not challenged as such in this appeal, rather the challenge is that the Employment Tribunal demonstrated by remarks before the oral part of the hearing began that it was biased against the Appellant.[2]The Appellant has set out in both his affidavit and his Notice of Appeal an extensive citation in italics which we are told derives from the notebook of the counsel whom he had instructed to attend on his behalf at the hearing. When the affidavit setting out exactly those comments came before the Tribunal Chairman for his comments, this being a case of bias, he simply said that what the Tribunal had to say, it had attempted to set out carefully in the Extended Reasons at paragraphs 2 to 7. We have looked at those reasons. We do not see in those reasons any matter which is necessarily inconsistent with that which the Applicant has set out in his affidavit. Therefore we shall approach this hearing upon the basis that the passages in italics were indeed what was said.[3]The issue for us is whether there is, in the allegation of bias, any properly arguable case that would justify further consideration at a hearing before this Tribunal at which the Respondents were represented. Bias is not merely a finding of bias upon available evidence but, because of the difficulty of proving and establishing bias, may be shown by the appearance of bias such as the appearance of there being a real danger that justice might not be done to a litigant's case. It may frequently be alleged that the Tribunal was in some way interested in the result. Thus allegations of bias may involve the allegation that a member of a Tribunal has a financial interest directly or indirectly in a particular result favouring one party rather than the other. Equally, it may arise in circumstances which led to the House of Lords second hearing in the Pinochet appeals when it emerged that Lord Hoffman's wife was centrally involved in an associate body to one of the litigants, and so it might be said that he had too close a link, albeit through his wife, with that party. Neither of those situations is said to arise here, nor is the more common situation in which a Tribunal is said to have conducted proceedings during the hearing in a manner which is unfair and hostile to one party.[4]When invited to categorise what bias meant in the circumstances of this case, Mr Bryant, who has appeared under the ELAAS scheme, and for whose submissions we are not only grateful but we have to say that we recognise the quality of them, described bias as being a predisposition which was not based on the merits of the case. He referred us to the Court of Appeal decision in the case of Harrarder Ltd v Jeffrey Paul Turner [2001] EWCA Civil 599. That was a case in which a Tribunal had given the appearance of bias. The reason that that appeared was from notes made by counsel appearing on behalf of the disappointed litigant. What he noted indicated that the Chairman of the Tribunal had in mind that the Respondents, whom counsel represented, were well known to the Tribunal and then went on to describe them in derogatory terms. It seems to us that those facts were facts which demonstrated that the Tribunal there was taking into account matters which were not based upon the merits of the particular case but rather based upon entirely extraneous circumstances, and on a view of one of the litigants which had nothing to do with the particular matter then before the Tribunal.[5]What happened here, as we understand it, is that after a day in which the Tribunal had read the documents and the witness statement which were to stand as the evidence in chief, the oral hearing began. The parties, through counsel, had asked for a little time to consider what the issues were. The Tribunal then set out in the words (which we have in italics) its own consideration of the issues. It did not simply discuss the issues but gave some indication as to the strength as it then appeared to the Tribunal of the argument in respect of those issues.[6]We recognise, as does Mr Bryant, that on many occasions a court must necessarily raise with litigants what is developing as a view of a case. It is impossible in any sensible practical way to prevent a court having a view of the merits of the case almost from the moment that members of the court begin to read the papers. There is, as Mr Bryant submits, and we accept, a spectrum which goes between having, at one end, a mind which is entirely blank and uninfluenced by any consideration whatsoever, and at the other, a situation in which a Tribunal has made its mind up. The latter situation is appropriate at the end of the case. It is not appropriate beforehand, but between the two there are many shades. As Mr Bryant said, and again we accept, where one draws the line is difficult.[7]He suggests that what was said and what we have in italics was over that line, that it demonstrated a predisposition which was not justified and which was not fairly and properly based on the merits of the case but represented such a closed mind as to, in effect, negate the purpose of further proceedings. Taken as a whole, he submitted to us, what was said suggested that the Appellant had lost before he had begun. In particular, he asked us to focus upon a particular paragraph which is the only one we think it necessary to set out in full in this judgment. It was in these words:
"In any event if the Applicant failed in his complaint it is the Tribunal's experience that local authorities in those circumstances often feel it is a duty on them to ask for costs against the Applicant, that should also be taken into consideration."
What, he submits to us, is that there is an impression which may be formed either from the words taken as a whole or from particular parts of them (he had in mind what he had described as a costs warning) which would indicate that in this case there was such a predisposition as to make the proceedings unfair against the Appellant.[8]We have to approach this case by asking whether there is any arguable case which merits further hearing that that might be right. Making all due allowance for the fact that we are not determining the final issue, but merely whether there is an arguable case, we have come to the conclusion that we cannot see in the remarks taken as a whole any such case. We think that, taken at the highest, the remarks were a strong indication of the way the Tribunal's mind was moving. But we note that repeatedly there are indications that the Tribunal's mind was not closed, in the sense of finally made up, and we do not think that any court could see the line drawn in such position. For these purposes the court is in exactly the same position as would be the reasonably well informed and objective observer who Mr Bryant urged us to regard as the touchstone. We think that viewed from his or her perspective there would, taken overall, be no arguable case.[9]We have next to consider whether or not the particular words about which complaint was made, as we have set out in a separate paragraph, make a difference. First, we accept for the purposes of dealing with this argument that this was indeed a costs warning: there would be little point in mentioning that applications for costs might be made simply to record as an historical or statistical fact that that sometimes occurred. The significance in this context was the indication that not only might such an application be made but that there was at least a risk that it might be granted. We have had more concern with whether this passage taken in the context or taken on its own is capable of demonstrating the degree of closed mind that might in these circumstances justify a complaint of bias.[10]We have concluded that it does not. We have in mind that it is part of a Tribunal's regular function to give warnings on cost, albeit usually at Preliminary Hearings. We have taken into account the way in which it is expressed. We do not think that the Tribunal here was saying, in effect, there will be costs to pay if you go ahead. We think rather it was saying the evidence might turn out to be such that there is an application for costs and that application might then have some prospects of success. That is an indication of a strength of view but not of concluded view, nor do we think it possible to say that it gets so close to the latter as to cross the line which, though difficult, has to be drawn.[11]We have been urged to take account of the last four lines of paragraph 4 of the decision of the Tribunal which read as follows:
"Furthermore it was clear that the Applicant's view of what had been said with regard to costs was accepted by Mr Jones [his counsel] as inaccurate and obviously that view, had it been true, would have been a clear indication of potential bias on behalf of the Tribunal."
There has been nothing in the Notice of Appeal nor in the affidavit which gives us any clearer view of what the Applicant had said through Mr Jones to the Chairman and which counsel on his behalf then accepted as inaccurate. We think it unlikely to have been that which is in italics, both because of the view we have taken of the italicised paragraph but also because, that, we are told, comes from counsel's notebook and had he thought that the Chairman had indeed made remarks which did indicate a settled intention, for instance, to penalise the Applicant in costs if he went ahead, then that would have been reflected in the recording and indeed in his submissions at the time. We cannot think that he would have accepted the Applicant's view, if that had been the view, as inaccurate at the time. We do not think therefore that it is helpful to explore further what was accepted on the Applicant's behalf as an inaccurate view and about which there has been no subsequent complaint.[12]Accordingly, we do not think this is a case in which further investigation is needed. For those several reasons we regret that we cannot see that there is here sufficient of a case to trouble a further Employment Appeal Tribunal. The appeal must be dismissed. It is for that reason that we have set out our reasoning in relatively full terms.