DR A ABEGAZE v (1) GRAHAM MOORE (2) STOKE ON TRENT COLLEGE [2002] UKEAT 1078_01_2106

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1078_01_2106

Case No Appeal No. EAT/1078/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DR A ABEGAZEAPPELLANT

(1) GRAHAM MOORE (2) STOKE ON TRENT COLLEGERESPONDENT

Before

Mr Justice Lindsay

Date 21 June 2002

[1]APPEARANCES For the Appellant MR D PANESAR (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE LINDSAY (PRESIDENT) : I have before me the appeal of Dr A. Abegaze in the matter Abegaze against, firstly, Graham Moore, an individual and, secondly, Stoke on Trent College. It is an appeal by Dr Abegaze against the Registrar's Order striking out some parts of his Notice of Appeal for want of compliance with an "unless" Order under which he had been required to serve an affidavit and failed to do so.

[2]The chronology of the matter is that on 14 September 2001 Dr Abegaze faxed a Notice of Appeal to the Employment Appeal Tribunal. It raised 22 separate complaints about a Decision of the Employment Tribunal which had been sent to the parties on 26 July 2001.

[3]Amongst the 22 separate handwritten paragraphs was one which said (and I hope I get it correct – it is handwritten and not entirely easy to read, but it appears to say this):

"17 There was a complete procedural flow which prevented me, amongst other things, cross-examining the respondent adequately, prevented me summing up adequately and properly, prevented the investigation by tribunal my complaint that the respondent has tampered with evidences, prevented me giving the [could be this ] letter to the ET or the Clerk before the decision, which would have showed clearly the tribunal was biased or would have been a very good evidence to show that the tribunal was biased."

That paragraph 17 does seem to suggest that the Employment Tribunal had been biased and, moreover, that it managed to exclude evidence that would have shown that it was. The Employment Appeal Tribunal's Practice Direction deals with complaints of that kind in its paragraph 9:

"1. A party who intends to complain about the conduct of the Industrial Tribunal (for example, bias or improper conduct by the Chairman or lay members or procedural irregularities at the hearing) must include in the Notice of Appeal full and sufficient particulars of the complaint. 2 In any such case the Registrar may inquire of the party making the complaint whether it is intended to proceed with it. If so, the Registrar will give appropriate directions for the hearing. 3 Such directions will normally include the swearing and filing of affidavits by the complainant or his or her advisers or other witnesses or by the Respondent or his or her advisers or any others who can give relevant evidence as to the facts which form the basis of the complaint and the provision of further particulars of the matters relied on. … 6 The EAT will not permit complaints of the kind mentioned above to be raised or developed at the hearing of the appeal unless this procedure has been followed."

[4]On 13 September 2001 the Registrar wrote to Dr Abegaze, saying, inter alia:

"In accordance with the enclosed EAT Practice Direction, the Registrar has directed that under paragraph 9 you should submit an affidavit giving details of the alleged bias within 21 days from the date of this letter. Failure to file the affidavit within the stipulated time limit may result in this particular ground of appeal being struck out."

There is reference there to this particular ground of appeal. It was not particularly identified as referring to one or other paragraph of the Notice of Appeal. Despite that, no affidavit was received and no answer was received and so the Registrar wrote again on 8 October, saying:

"I refer to the above matter and our letter of 13 September 2001 and note that you have failed to lodge an affidavit in accordance with paragraph 9 of the Practice Direction. If it is your intention to pursue the allegations raised in your Notice of Appeal a sworn affidavit must be lodged with this Court no later than close of business (4:30 pm) Thursday 18 October 2001. If you are not pursuing the allegations of bias/improper conduct you should notify this Court in writing without further delay. Failure to reply may result in the allegations being struck out."

Even so, no affidavit was received, nor any answer. On 31 October accordingly, the Registrar made an "unless" Order and it said:

"UPON the failure of the Appellant to provide a sworn affidavit in accordance with paragraph 9 of the Practice Direction 1996 AND UPON the failure to respond to EAT letters dated 13 September 2001 and 8 October 2001 IT IS ORDERED that unless an affidavit is received by the EAT within 10 days of the seal date of this Order all allegations of bias or improper conduct contained in the Notice of Appeal will be struck out."

[5]On 8 November 2001 there was a letter from Dr Abegaze to the Employment Tribunal – again it is in handwriting and not altogether clear, but he said:

"2 I have learned long time that it is a waste of time to endeavour to tackle racial bias or misconduct of white judges against a black person using the so-called affidavit. 3 I have decided therefore the most effective way to present the evidences of racial bias or racial motivated misconducted of chairs of ET is to the Lord Chancellor - which I will do soon. 4 That is why I have not included elements of racial bias or misconduct as said basis unless UNLESS it amounts at the same time error of law and procedural flow. 5 The point in para 15, 17 and 19 are the only points which relate to this and all three amount to errors or law and/or procedural flow. 6 In view of all the above there is no need for me to file affidavit."

[6]So no affidavit was received and on 12 November 2001 the Registrar made an Order that said:

"UPON the failure of the Appellant to provide a sworn affidavit in accordance with paragraph 9 of the Employment Appeal Tribunal Practice Direction AND UPON the failure of the Appellant to respond to letters of the Employment Appeal Tribunal dated 13 September 2001 and 8 October 2001 AND UPON the failure of the Appellant to comply with the Order of the Employment Tribunal dated the 31 st day of October 2001 AND UPON due consideration of a facsimile received 9 November 2001 from the Appellant IT IS ORDERED that all allegations of bias improper conduct or procedural irregularities are struck out of the Notice of Appeal as annexed hereto."

[7]That reference to a fax of 9 November refers to the EAT's stamped date of receipt and can only be to the matter that I read out a moment ago and identified, from the date actually on it, as that of 8 November. As that Order suggests, there was annexed to the Order a form of Notice of Appeal, with paragraphs struck out and with the excisions stamped with an EAT stamp. As far as one can see, paragraphs 1, 4, 5, 6, 12, 13, 17 and 18 are all excised.

[8]On 3 December 2001 Dr Abegaze indicated he wished to appeal against the Registrar's Order. The position today is that, had Dr Abegaze attended, he would have had the assistance of Mr Panesar under the ELAAS system, but the rules of ELAAS very sensibly provide that if the party does not attend, then the ELAAS representative is not in a position to act for him. I have, nonetheless, asked Mr Panesar to attend and I indicated that I was, in the manner that will shortly appear, in Dr Abegaze's favour and that I proposed therefore to give a judgment in his favour. Mr Panesar, of course, had no wish to oppose that proposal.

[9]Accordingly, I proceed now with the substance of the judgment and I allow Dr Abegaze's appeal on two grounds.

[10]Firstly, there has been a real lack of clarity as to what it was that had to be supported by affidavit and what it was, therefore, that was in jeopardy of being struck out if there was no affidavit. Firstly, there was the letter of 13 September 2001 that spoke of "details of the alleged bias". Secondly, there was the letter of 8 October 2001 which said "allegations of bias/improper conduct". Then there was the Order of 31 October 2001 - "allegations of bias or improper conduct" - and, lastly, there was the Order of 12 November 2001 "allegations of bias, improper conduct or procedural irregularities". So there were three different versions in only four communications. It seems to me that a party is entitled to clearer information than that.

[11]But a more important and second ground is that the excisions, in my judgment, go beyond what may properly be struck out. Whichever of those four communications was proper to be relied upon, the Notice of Appeal complaints 1, 4, 5, 6, 12, 13 and 18 all assert not bias or improper conduct in any material sense or procedural irregularity, but perversity.

[12]Perversity has more than one form. It may consist of a Tribunal arriving at a conclusion for which there was no evidence whatsoever in support. It may consist of the Tribunal arriving at a conclusion contrary to unopposed evidence, for which no reasons of rejection are given or could be reasonably inferred. It may consist of a Tribunal arriving at a conclusion such that an indifferent and well informed adjudicator, given the evidence and argument which that Tribunal received, would throw up his hands at the conclusion and say "My goodness, that can't be right". These are but examples of what may be called "impermissible options" but it is no part of perversity, as so understood, that it involves, or necessarily involves, bias or improper conduct or procedural irregularity on the part of the Tribunal.

[13]On that basis, as it seems to me, I must allow the appeal and restore paragraphs 1, 4, 5, 6, 12, 13 and 18, to that extent setting aside the Order which had struck those paragraphs out.

[14]That leaves paragraph 17 which I earlier read and which, as it seems to me, plainly does allege bias and, therefore, is required to be supported by affidavit. I briefly discussed paragraph 17 with Mr Panesar. I indicated that had Dr Abegaze attended I would have expected to put to him whether he truly intended to pursue paragraph 17, if the other paragraphs were restored, as I have restored them, and that I would have expected him to say that yes, he did wish to pursue that paragraph. I would therefore have said that he would be required to complete an affidavit in support of it, in compliance with the Practice Direction.

[15]Mr Panesar is not in a position to take instructions or to respond as if instructed but it seems to me that if I direct that Dr Abegaze is to have 21 days in which to lodge an affidavit as to paragraph 17, an affidavit complying with the Practice Direction, that that would be a just solution. But I want it made quite clear to Dr Abegaze that if, at the expiry of those 21 days and without further application in this behalf, he has failed to support that paragraph with an affidavit, then the paragraph will be struck out for the second time and I hope that he is aware that that is the provision that the Court makes in this regard.

[16]Accordingly, to the extent that I have indicated, I set aside the Order of the Registrar. I strike out the striking out, so to speak, of the paragraphs that I have mentioned and I direct as to paragraph 17 that there should, within 21 days, be an affidavit in support, if it is intended to be pursued, but that if no affidavit is received complying with the Practice Direction within that 21 days running from today then paragraph 17 will be struck out. [Discussion with ELAAS Representative] That leaves the other matter and, again, of course, you would not have had instructions and, in fact, I have not discussed it yet with the lay members but it seems to me, - I know that Dr Abegaze was looking for an adjournment on health grounds and, I think a letter was written to him earlier (I can't remember now, it was either last week or earlier this week) - but it seems to me that had he attended he would have had a different and good ground for adjournment, namely that the Notice of Appeal is now twice the size of what he thought it would be and that, especially if he was here only in person, he could not be expected to go ahead with it here and now because it would be a much greater undertaking than he would have expected it to be. I have not yet discussed it with the lay members and I think the only thing I can do is to rise now and then discuss it with the lay members, but I am approaching it on the basis that I do see force in an argument that it has to be adjourned in any case, not on the health ground which has not been actually substantiated and subject to anything you have to say, but on the ground that I mentioned, that it is now twice the Notice of Appeal that he could have expected it to be.