"Attrill -v- Wightlink Limited Case no 3104736/00 Thank you for your copy letter dated the 13 June to Mrs Attrill with its enclosure. From the Respondent's point of view the Tribunal will understand that it has been to considerable expense in having a number of these related cases heard in the Tribunal and which were determined in a consolidated hearing lasting one week. Having regard to the Tribunal's finding in the case of Davies (Case Number 3104266/00) it is the Respondent's intention, if this case remains effective, to make an application to have the action dismissed. At the present moment the old procedural rules apply and at the very least this matter will require a pre-hearing review under rule 7 of the existing rules as well as further directions. Mr Twiss was the Chairman who dealt with this matter and bearing in mind the issues of proportionality that are coming to the fore in Tribunal proceedings, we are concerned about the effective use of Tribunal time as well as doing justice to both parties. We would be grateful if this matter could be reviewed by a Chairman in the light of this letter."
"1……… pay, within 21 days, beginning with the date upon which a copy of this Order is sent to the parties, a deposit of£10.00 as a condition of being permitted to continue to take part in these proceedings. 2. The Applicant's application to amend the Originating Application is refused."
"1 These proceedings are brought by Mrs Attrill as personal representative of her deceased husband, Mr T A Attrill." [In point of fact she was continuing proceedings brought on by him] "2 In coming to my determination on the Pre-Hearing Review and application for the amendment of the Originating Application, I have read the Originating Application, the Notice of Appearance and the decision in the case of Davies v Wightlink Ltd referred to by Mr Miles in his submissions. [that is the advocate for the Respondent] I have also listened carefully to the submissions of counsel. 3 I was the Chairman of the Tribunal dealing with Mr Davies' case. It was a long hearing with a number of unusual features, and I have a vivid recollection of it. Our consideration of the case of Mr Davies involved reading a substantial part of the fact-finding interviews conducted by the Respondent with Mr Attrill. 4 Mr Dracass [ Counsel for the Appellant and Counsel below] has raised the issue whether or not I should refrain from hearing this Pre-Hearing Review because of my involvement with the Davies' case in view of my intimate knowledge of it. I have considered carefully whether I am likely to be biased for or against Mr Attrill and whether my knowledge of a considerable amount of the circumstances of his dismissal would be likely to prejudice me in deciding this application. 5 I have decided that it would not. I cannot emphasise too strongly that today I am not trying the issue between the Applicant and the Respondent in this case: that is something for another day. What I am doing is determining whether or not the Applicant's case stands a reasonable chance of success. I believe it is appropriate and helpful that I should bring my knowledge derived from the previous hearing to bear on the matters I am now considering. There is a great deal of commonality between his case and that of Mr Davies and the other Applicants whose cases were settled. The Tribunal at the previous hearing conducted a close examination of a mass of evidence, and I have the circumstances surrounding Mr Attrill's dismissal clearly in my mind . It had been intended that his case should be heard jointly with that of Mr Davies and the others, but this could not be done because he was too ill to attend. 6 While I have the very greatest sympathy for Mrs Attrill, I am in no doubt that Mr Attrill's case does not stand any reasonable chance of succeeding . It is my clear recollection (confirmed by the documents considered and the submissions made today) that the Respondent's investigation led them to a reasonable belief in the guilt of Mr Attrill of the disciplinary offences for which he was dismissed. I therefore consider it appropriate to make an Order requiring Mrs Attrill to pay a deposit." [Our underlining] Paragraph 7 gave details of the Appellant's modest means and the rest of the Decision dealt with the application to amend the Originating Application. The sentence in paragraph 6: "
"8. The question the Chairman asked himself was whether or not he was in fact unable to deal with the case before him on the basis that he might be biased because of his knowledge in the Davies' case. He says that he considered carefully whether his knowledge of the background and the considerable amount of material with which he had previously to deal would be likely to render him unable judicially to deal with Mrs Attrill's case. He came to the conclusion that he was not so biased and proceeded. 9. It is however reasonably clear from the authorities that the proper test which should be applied is whether or not a reasonably objective person would perceive bias even if it did not actually exist; and by that standard it seems to us with respect to him that the Chairman may have misdirected himself - alternatively it is certainly arguable that he did and that is sufficient of course at this point to allow that aspect of the case to go forward to a full hearing."
"10. During the pre-hearing review itself, Mr Twiss referred to having heard evidence at Mr Davies' hearing about the investigation relating to my husband. I am not sure exactly what evidence he heard about my husband during Mr Davies' hearing, but I recall he referred to having read my husband's 'statement'. This document, I believe, runs to some 150 pages and I find it hard to believe Mr Twiss was entirely familiar with it. The circumstances of my husband's dismissal are not something that the tribunal in Mr Davies' case would have been directly concerned with. Moreover, my husband was not present at Mr Davies' hearing to challenge or explain any of the evidence that the tribunal may have heard about his case. I was concerned that Mr Twiss had regard to such material. 11. Mr Twiss found that my husband's complaint had no reasonable prospect of success and ordered me to pay a deposit to continue the proceedings. He warned me that if I pursued the action and lost I could be ordered to pay the Respondent's costs."
"The hearing of Mr Davies' complaint took five days. Much of the first day was taken with reading the considerable volume of documentation arising from the respondents' investigations which included much which related to Mr Attrill. We certainly did not, however, read all the documents relating to him. We considered from our reading that it might be proper for the respondents to consider settling three of the claims and that suggestion was put to their counsel. The claims were, as Mrs Attrill says, settled on the first day of the hearing. Similar considerations did not, however, apply to the other three dismissed employees, Mr Attrill, Mr Davies and an employee who resigned before the disciplinary proceedings were completed. The case against Mr Davies proceeded and he lost; Mr Attrill's of course, did not. Whilst we did not, by any means, read all of the documentation relating to Mr Attrill's case, we saw enough evidence relating to his activities to form the opinion that, as in the case of Mr Davies, the respondents seemed to have ample evidence from which they might reasonably conclude that he was guilty of active participation in the fraud. I hope I made it clear in the pre-hearing review that I was not trying Mr Attrill's case, merely expressing the opinion that it was unlikely to succeed. This was not arrived at lightly. I had in mind not only the interests of Mrs Attrill, but also those of the respondents (and also, as a secondary consideration, those of the trade union supporting her who might wish to have a relatively informed view as to whether the case was likely to succeed). Mr Attrill's case will be a long one. The costs on both sides will be very substantial. During the pre-hearing review, Mr Dracass admitted that I knew a good deal more about the case than he did. It seemed to me that justice and the best interests of the parties were most likely to be served by a decision on the pre-hearing review from someone who knew something of the case, rather than a chairman who knew nothing of it."
"…The Court of Appeal took the opportunity in In re Medicaments and Related Classes of Goods (No 2)[2002] 1 WLR 700 to reconsider the whole question. [of bias] Lord Phillips of Worth Maltravers MR,. giving the judgment of the court, observed, at p711 A-B, that the precise test to be applied when determining whether a decision should be set aside on account of bias had given rise to difficulty, reflected in judicial decisions that had appeared in conflict, and that the attempt to resolve that conflict in R v Gough had not commanded universal approval. At p 711 B-C he said that, as the alternative test had been thought to be more closely in line with Strasbourg jurisprudence which since2 October 2000 the English courts were required to take into account, the occasion should now be taken to review R v Gough to see whether the test it lays down is, indeed, in conflict with Strasbourg jurisprudence. Having conducted that review he summarised the court's conclusions, at pp 726-727: "85. When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased." "