MR N CATTON v (1) HUDSON SHRIBMAN (2) THE ECONOMIST GROUP [2002] UKEAT 111_01_1406

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 111_01_1406Case No Appeal No. EAT/111/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR N CATTONAPPELLANT(1) HUDSON SHRIBMAN (2) THE ECONOMIST GROUPRESPONDENT
Before
Mr Justice LindsayDate 14 June 2002
[1]APPEARANCES For the Appellant MR N CATTON THE APPELLANT IN PERSON For the Respondents MR MARTYN BARKLEM (of Counsel) Instructed By: Messrs Archon Solicitors Sun Court 67 Cornhill London EC3V 3NB MR JUSTICE LINDSAY (PRESIDENT) : I have before me for directions the case of Mr N. Catton against, firstly, Hudson Shribman and, secondly, the Economist Group. It is only a directions hearing.[2]On 13 October 2000 there was a hearing at the Employment Tribunal. On 26 October 2000 the Tribunal sent out its written reasons for its decision. It was a Tribunal consisting of Mrs J.R. Hill, Chairman, sitting alone and the decision was:
"The decision of the Tribunal is that the complaints of sex discrimination, race discrimination and breach of contract be struck out under Rule 13(2)(d) and (e) of the Employment Tribunals Constitution and Procedure Regulations 1993."
[3]There was a Notice of Appeal lodged by Mr Catton against that decision on 7 December 2000 and in the ordinary way that went to a preliminary hearing at the Employment Appeal Tribunal on 13 June 2001. Most unusually the case had happened to be at an Employment Tribunal and was before Mrs Hill as part of a pilot scheme as to tape-recording, which made tape recording possible of the course of the hearing. Two tapes came into existence, it would seem, of the hearing of 13 October 2000, one full one and one shorter one. One of the grounds that Mr Catton was asserting in his Notice of Appeal to the EAT was that Mrs Hill had been biased against him and that a listening to or a transcript of the tape, or certainly both combined, would make it manifest that she had been biased.[4]The preliminary hearing at the EAT identified quite a number of arguable points proper to go forward to a full hearing and, as I see it, the matters that need decision today – that is to say matters of the directions kind – are as follows. First of all, is there a need for a better transcript of tape 1 of the hearing on 13 October 2000? Is there a need for a proper transcript to be made of tape 2 of the hearing on 13 October 2000? If so, what steps are appropriate to see that such better or new transcripts are obtained? Should the Employment Appeal Tribunal listen to the tapes? At the hearing of the substantive appeal which is fixed for 20 June – in other words, I think it is next Thursday – and which is a question which has been greatly addressed today, is should the hearing of 20 June here be adjourned? Before me today these issues have been dealt with by Mr Catton, who is appearing in person and, on behalf of the Respondents Mr Barklem has appeared.[5]At the preliminary hearing at the Employment Appeal Tribunal on 13 June 2001 Counsel Mr Thornton appeared for Mr Catton under the ELAAS Scheme and, it was a successful preliminary hearing, so far as Mr Catton was concerned because, as I mentioned, a number of issues were identified which the preliminary hearing regarded as fit to go forward to a full hearing. There were, as it seems to me from reading the judgment of 13 June 2001, six such issues.[6]Firstly, had Mr Catton been given adequate warning that there would be a strike out application to be ruled on at the hearing on 13 October 2000?[7]Secondly, had Mr Catton on that day had an adequate chance of dealing with the Respondents' 200 page bundle which, it was said, was produced there and then on the day or only very shortly before?[8]Thirdly, had Mr Catton had the opportunity to see notes of complaints by staff at the Employment Tribunal which were, or might have been, relied upon in the Tribunal's striking out of Mr Catton's application?[9]Fourthly, in point of pure law, so to speak, was there any jurisdiction existing at the time that Mrs Hill heard the case enabling her to strike out on a view of the merits of the case? That requires a look at a case called Care First Partnership v Roffey .[10]Fifthly, another issue identified on 13 June 2001 was whether there had been an adequate dealing by the Tribunal below with the issues of breach of contract and victimisation?[11]Sixthly, and last, was there bias apparent in the conduct of the Chairman, Mrs Hill?[12]I have looked at the papers in some detail. The tapes and the transcripts of the tapes could possibly throw very distant weak light upon issues 2 and 3; that is to say, the adequacy of dealings with the Respondents' 200 page bundle and the opportunity to see notes of complaints made by the staff. But, as it seems to me, to an overwhelming degree, the transcripts and tapes go, if to anything, to the issue of bias. As I see it, issues 2 and 3, which I have just identified, can readily be dealt with without the tapes or transcripts being used because there is already quite a considerable amount of material including the Chairman's handwritten notes that would be adequate to deal with issues 2 and 3 as part of the whole appeal. As I see it, issues 1, 2, 3, 4 and 5 can all be very adequately dealt with without admission in evidence of the existing transcripts and without further transcripts or without any listening by the Employment Tribunal to the tapes.[13]If the issue of bias is separated out from the other issues it seems to me that there is no remaining good ground for adjourning the hearing on 20 June. I do not see that Mr Catton would be in any way put at a disadvantage on 20 June in not having any admission of the tapes or transcripts if the issues are such that bias is put on one side and if such transcripts as have already been produced are put on one side.[14]Accordingly, I shall not adjourn the hearing fixed here for 20 June, but the 20 June hearing is to deal first with all issues except bias and, in doing so, unless it (the panel that hears the matter on 20 June) rules otherwise or unless the parties specifically agree, the Employment Appeal Tribunal on 20 June is not to admit any transcript, or extract of a transcript, nor listen to any tape. The Tribunal on 20 June can then rule on the issues other than bias.[15]If Mr Catton succeeds in overturning the striking out of 26 October 2000 on any of those five issues which are to be heard first and ruled on first then it is highly likely, as it seems to me at this juncture, that the issue of bias will thereafter be irrelevant. If Mr Catton, conversely, fails on all of the issues other than bias – in other words, the issues to be heard first on 20 June – then it is not improbable that bias will need to be looked into. It would be then relevant - and, at the end of its deliberations on 20 June, the Employment Appeal Tribunal would then be able - to decide whether tapes or transcripts would be relevant to the issue of bias for a fair disposition of that issue and, if so, the EAT would have to decide how to set about obtaining adequate transcripts. That can be done at the end of the hearing on 20 June but it will only be relevant, as it seems to me, if Mr Catton fails on all five of his other issues.[16]If, on 20 June the Employment Appeal Tribunal does find it necessary to rule how transcripts should be provided, then I should note that the correct technique is that the EAT should ask the Employment Tribunal to release a copy of the tape in question direct to authorised court shorthand writers, who will then transcribe the tape. The usual practice is that initially, at least, the cost of the transcription is out of the pocket of whoever requires the tape, so that in the first place, at least, one would expect the expense of transcription to be borne, by Mr Catton. I mention that simply because I would expect that to be the practice of the shorthand writers when dealing with a litigant in person; it would not be improbable that they would require a deposit or payment "up front", so to speak. Normally, when they deal with solicitors, I do not think they ask for payment up front because, of course, the solicitors are regulated by the Law Society but that protection is not given where he who seeks the tape is a litigant in person. I just mention this as an aside because that would be the practice I would expect the shorthand writers to follow – although whether they do or not is entirely for them.[17]So, coming to the directions issues which I mentioned at the outset, there is in my view no need for a further transcription of tape 1, or a fresh transcription of tape 2, for a hearing on 20 June on the basis that 20 June puts aside the issue of bias and does not entertain tapes or transcripts. If transcription later becomes necessary, well, then, I have indicated how it should be set about and, no doubt, the Employment Appeal Tribunal can consider what practical steps need to be taken if transcription is, indeed, necessary.[18]As I see it, there is no need, either, for the Employment Appeal Tribunal to listen to tapes on 20 June, given that they will be dealing only with the five first issues and putting aside the issue of bias. The hearing on 20 June is not adjourned but is to deal first with and rule first upon all issues except bias and will do so, unless the parties agree or the Employment Appeal Tribunal itself rules otherwise, without reference to any part of any transcript.[19]If necessary on 20 June the Employment Appeal Tribunal at the end of its deliberations can direct how the further conduct of the appeal should take place and, in particular, can then give directions as to further transcription and, if it truly regards it as necessary and desirable for a fair disposition of the case, even to some form of listening to the tape.[20]As for listening to the tape, the Employment Appeal Tribunal itself does not have adequate machinery which would permit that to be done in any convenient way. The High Court practice, where a listening to the tape is required, is that the party who seeks the listening himself or herself makes the necessary technical equipment available and that, it seems to me, would be the proper practice should the Employment Appeal Tribunal determine that there was to be a listening, but that is very much for the future. As I say, 20 June will rule first on all other issues and will only need to turn to bias if Mr Catton fails on the other issues. Costs Application [after discussion with Counsel][21]I am just looking at Rule 34, which is the relevant rule, and Mr Barklem has asked for a rather limited form of Order for costs. He has asked that the costs of the issues relating to Mr Catton's loss of tape 2 should be borne by Mr Catton and that those costs should be separated out and assessed by the Costs Officer. Rule 34(1) provides as follows:
"(1) 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 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."
[22]Well, it is certainly true (and I have heard nothing otherwise) that Mr Catton lost the version of tape 2 that was sent to him but there are other versions of tape 2 that exist both, presumably, the original at the Employment Tribunal and such copies of tape 2 as were sent to one or other party apart from Mr Catton. I do not see that the issue of how and when and whether Mr Catton had lost a copy of tape 2 should have generated very much correspondence or costs and, although there are undoubtedly letters that vex Archon (who are the Respondents' solicitors) on the issue, I do not see that Mr Catton in this respect has conducted himself unreasonably in his conduct of the proceedings. It was, of course, his fault if he lost the tape, but I do not see it as wrong for him to have informed other parties, such as the Employment Tribunal, or the Employment Appeal Tribunal, or the Respondents' solicitors, on the subject and if he was excessive in doing so, well, it is to be remembered that he is acting in person and it is not uncommon for a person acting in person to perhaps overplay his hand.[23]But, looking at the matter in context, I do not see that there has been unreasonable conduct in this particular respect and, accordingly, I make no order as to the costs application which Mr Barklem makes.