MS L THOMPSON v COMMUNITY HEALTH SOUTH LONDON NHS TRUST [2002] UKEAT 1051_00_2309

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1051_00_2309Case No Appeal No. EAT/1051/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS L THOMPSONAPPELLANTCOMMUNITY HEALTH SOUTH LONDON NHS TRUSTRESPONDENT
Before
Mr Recorder LangstaffDate 23 September 2002
[1]APPEARANCES For the Appellant MR A WILLIAMS (Representative) For the Respondent MR P McGRATH (of Counsel) Instructed by: RadcliffesLe Brasseur 5 Great College Street London SW1P 3SJ MR RECORDER LANGSTAFF QC On 25 September 2001 this Tribunal determined at a Preliminary Hearing that the intended appeal of Miss Thompson should be allowed to proceed to a full hearing. This was on the basis of one ground only, there being no arguable grounds in the Notice of Appeal. That one ground was whether there was bias, as Miss Thompson through Counsel alleged, consisting of the fact that the London South Tribunal heard the case. This was because when the case was pending before that Tribunal the Regional Chairman had written to both the Appellant and the Respondent saying that he had decided to transfer the case from London South to London North because the principal witness for the Respondent, a Ms Fellows, sat as a lay member of the Employment Tribunals in Croydon and Ashford. We were troubled by the fact, for which we were given no explanation at the hearing as to why it was after that recognition of the danger of apparent bias the case nonetheless went ahead at London South.[2]A review has now been sought of our decision to give permission. The power to review is contained in Rule 33 of the Employment Appeal Tribunal Rules 1993. It includes the power to review a decision where the interest of justice requires it. Here it is said that we were simply not given the information which we perhaps should have been given as to why it was that the hearing went ahead at South London.[3]The additional material which we did not have and were not referred to consists of correspondence between the Tribunal and Miss Thompson. In particular it shows that she responded on 29 November 1999 to the Regional Chairman's decision to transfer her case from London South to London North. She disagreed with the choice of London North and asked for another venue to be considered (seeking that she might have reimbursement of her travelling expenses). The Tribunal responded by proposing to transfer the case for hearing in Bedford. Miss Thompson objected to that because she had not been consulted and subsequently wrote on 8 December 1999 saying this, so far as material:
"After taking legal advice I am objecting to the transfer of my case to Bedford. As it was explained in a letter to myself dated 24 th November 1999 that Ms Pauline Fellows is a lay member of London South tribunal service. Providing Ms Fellows has no handling of my case prior to the hearing I can see no grounds which would prejudice my case from being heard at London South. As this transfer clearly shows is to the benefit of the respondent but fails to take into account the inconvenience caused to myself not only in time travel, but also in child maintenance. I therefore request that you reconsider transferring my case but to hear this case in the jurisdiction of the South London area (and it concluded) "
Accordingly, the case was listed for hearing before South London.[4]What then happened we recounted in our earlier decision. Miss Thompson did not come to the Tribunal. The case was heard. Evidence was taken. On the basis of that evidence and in the absence of any evidence to contradict it (Miss Thompson not being there) her application failed.[5]Through Mr Williams this morning we have been urged to say that the law is such that where there is the danger of an appearance of bias it is incumbent as a matter of law upon a Tribunal to take steps to avoid it. In the circumstances of this case the Tribunal should have transferred Miss Thompson's case, notwithstanding her consent to having the case heard in London South. Indeed it is argued that so important is the absence of any risk of any appearance of bias that any protestations by Miss Thompson to the effect that such a decision might be inconvenient to her and might even be adverse to her interests should be overruled.[6]An alternative way in which the matter was developed in his argument by Mr Williams was that in deciding to proceed with the hearing in the absence of Miss Thompson the Tribunal should have taken into account in exercising its discretion the fact that the principal witness for the Respondent from whom they would inevitably hear if the case went ahead was a lay member of the Tribunal sitting at Croydon or London South.[7]We think that in the light of the material which we have been shown and in particular the letters which it is accepted were written by Miss Thompson that this appeal is completely unarguable. Mr Williams accepts that the substance of the letter before the hearing was set down for London South is the same as the substance of submissions that might have been made orally had Miss Thompson attended in person. Where a Court knows of some feature which the objective observer might consider to give rise to a possibility of the appearance of bias and draws that feature to the attention of the parties it is established law by a Court of Appeal decision in the Locabail case that no complaint of bias can thereafter succeed if the parties agree to proceed notwithstanding their knowledge of the possibility. That is because their agreement to continue removes the possibility of bias as it would appear to any objective observer. That proposition is we think a complete answer to Mr Williams' submissions, which have no prospect of success whatsoever.[8]We do not think that the fact that a witness might be connected with the Tribunal has any part to play in the exercise of the discretion by the Tribunal in the sense that it must have had regard to it in exercising its discretion. That is of course in circumstances where the Tribunal has already brought the relationship to the notice of the Applicant and she has indicated that she has no objection and sees no possibility of bias. Still less could there be any possibility of bias where the Applicant asserts as she did in her letter that she had taken legal advice before accepting that the case should go ahead at London South.[9]For those reasons we think that if we have power to review the decision we reached that we should do so. We do have power and we consider it to be in the interests of justice to do so. We consider it regrettable that we were not told by Mr Williams that the decision to have the case heard at London South was one which was reached at Miss Thompson's own insistence.[10]Accordingly, we allow the application to review. We do review our decision. We review it with the result that there is here no arguable point of law that justifies proceeding further to an inter partes hearing.[11]There is one final matter with which I would wish Mr Williams to deal. (Discussion with Mr Williams. Then ' retire and consider the application for costs')[12]We are faced here with an application for costs. The application is made pursuant to Regulation 34(1) of the Employment Appeal Tribunal Rules 1993. That provides as follows:
"Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay to any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings."
There are two aspects in which it might be said that the proceedings consisting of the application before the Tribunal and the appeal to this body have been unreasonably conducted. The first is that Mr Williams told us in the course of his submissions that Miss Thompson wrote to the Tribunal telling it that she had taken legal advice and asserting on that basis that the case should be heard in South London, despite the fact that Ms Fellows was a sitting member at Ashford. (I think in my principal judgment I said "Croydon or Ashford." It is in fact Ashford and just Ashford). He has told us that in fact that was untrue. She had not had any such legal advice.[13]It is difficult to resist the conclusion that she was deliberately misleading the Tribunal in that respect. However, because those were proceedings before the Tribunal we shall overlook that aspect of matters.[14]Secondly it is said that the proceedings were conducted unreasonably because we were induced to think that there was an arguable case on a basis which was to the knowledge of Miss Thompson demonstrably false. Alternatively that we had not been told at the time that we reached our earlier decision that the reason why the case was listed for hearing in London South was because Miss Thompson has specifically requested that that should be so despite knowing of the potential bias.[15]We are told by Mr Williams he was unable to tell us this at our first hearing because he, representing Miss Thompson on the last occasion, had not then been told by his client that was the case. He did not discover that it was the case until subsequently. We have to consider the conduct not of Mr Williams but of Miss Thompson who is of course responsible in law for the behaviour of her representative and the conduct of her claim.[16]We have no doubt that we should have been told this information. Having given a decision which specifically drew attention to the single point in the appeal it should have crossed Miss Thompson's mind that we should shortly thereafter have been told that we had reached the decision upon a basis which could indeed be explained.[17]Despite the correspondence which has come to light nonetheless Miss Thompson has chosen to persist in her appeal. It ought to have been abandoned. It had no reasonable prospect of success following disclosure of that correspondence. Accordingly we have no doubt that her conduct of this claim falls within the scope of Rule 34(1). We then have a discretion to award the whole or such part of the costs incurred by the other party as we think fit. The costs incurred since 18 October 2001 are said on a schedule which has been provided to Mr Williams this morning to total £3,468.16. He has no specific comment upon the items claimed nor the hours attributed to each of those items nor the rate claimed. He asked us in effect to moderate any award which we might otherwise make or to make none at all because Miss Thompson is impecunious and is a single mother.[18]We have considerable sympathy for anyone who is in such a position facing what amounts to a bill. We do not see however that we should in a case such as this moderate the amount of costs which we should award by virtue of her position. We think it may well be a matter for discussion between the parties as to what if any part of any order we make Miss Thompson might actually pay. We suspect that the order we make might well remain unfulfilled at least in part. However, we consider that the appropriate order to make is one which reflects the entirely unnecessary expense to which the Respondent has been put because we as a Court were simply not informed of the full facts when we should have been.[19]We are however going to moderate the amount claimed by making allowance in respect of the time following our decision earlier in which it might have been reasonable for Miss Thompson to have considered the effect of our decision, what she knew about the letters she had written, and what she should do to tell the Court that in truth the matter proceeded before London South at her own request.[20]Accordingly we think that the sum which should be ordered by way of costs should be a total sum of £3,000 and not the full amount of the claim, despite there being no query as to the hours, items or rate which has been put before us. For those reasons with some sadness we feel obliged to exercise our discretion to make an order in the sum of £3000 to be paid by the Appellant to the Respondent.