MR D H MALKAN v THE CHIEF EXECUTIVE NHS EXECUTIVE & 19 OTHERS [2002] UKEAT 1153_00_2805

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1153_00_2805

Case No Appeal No. EAT/1153/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR D H MALKANAPPELLANT

THE CHIEF EXECUTIVE NHS EXECUTIVE & 19 OTHERSRESPONDENT

Before

Mr Justice Lindsay

Date 28 May 2002

[1]APPEARANCES For the Appellant MR W D PANTON (of Counsel) Instructed by: Commission for Racial Equality Maybrook House (5th Floor) 40 Blackfriars Street Manchester M3 2EG For the Respondents One - Three, and Nineteen For the Respondents Five - Eighteen. MISS J COLLIER (of Counsel) Instructed by: Department of Health New Court 48 Carey Street London WC2A 2LS MR M STEWART (Solicitor) Carter Lemon Camerons Solicitors 11 Breams Buildings London EC4A 1DW MR JUSTICE LINDSAY (PRESIDENT) We have before us as a full hearing the appeal of Dr D H Malkan, in a matter between Dr Malkan and nineteen Respondents. I will not read out their names in full but the initial ones are: The Chief Executive NHS Executive (1); The Chief Executive, NHS Executive, West Midlands (2); The Postgraduate Dean, Birmingham (3); The Vice-Chancellor, University of Birmingham (withdrawn) (4); The Senate of Surgery of Great Britain and Ireland (5); The Specialist Training Authority of the Medical Royal Colleges (6) and then a number of individuals who are figures in the medical profession of some high standing.

[2]Before us today Mr Panton has appeared for Dr Malkan, Mr Stewart for the Fifth to Eighteenth Respondents, and Ms Collier has had, in effect, a watching brief, on behalf of the First to Third, and the Nineteenth Respondent. In fact we have not heard Ms Collier because Mr Panton opposed her adding, at the end of the hearing, the assistance which she otherwise would have wished to give us. We thought it right in the circumstances that Ms Collier, whose clients had earlier indicated that they did not oppose the appeal, should not be heard.

[3]The history of the matter is that on 28 October 1998, Dr Malkan lodged an IT1 for race discrimination and sex discrimination against a number of Respondents, right down to number nineteen, Professor Templeton. The sex discrimination occurred, he said, on 26 January 1994 but that it was such that it only came to his notice on 7 October 1998. The race discrimination, he said, had occurred on 3 August 1998 and 12 August 1998 and, he said, that it was continuing. In his IT1, Dr Malkan said of the allegation of race discrimination as follows:

"1. I am of Indian Origin. I am a qualified Doctor and wish to become a Consultant. 2. As the law presently stands, in order to become a Consultant a doctor has to have his name entered on the Specialist Register maintained by the General Medical Council. 3. The Specialist Training Authority of the Medical Royal Colleges (the STA) in conjunction with the Royal College appropriate to the prospective Consultant's speciality decide whether or not the Doctor shall have his name entered on the Specialist Register and so in effect determine whether or not the Doctor may be able to become a Consultant. 4. On 12 August 1998 the STA determined that my name should not be entered on the Specialist Register. 5. On 3 August 1998 the Senate of the Surgery of Great Britain and Ireland via its subcommittees of JCHST (Joint Committee on Higher Surgical Training) and SAC (Specialist Advisory Committee) in Orthopaedics refused to issue a retrospective certificate of accreditation. 6. I say that this decision by the STA in conjunction with the Respondents listed in No 5 amounts to unlawful racial discrimination. They are jointly and severally liable. Sexual Discrimination: It is my belief that if I were a woman, Respondents 1 - 5 would have come to a different decision in 1994."

One is bound to say that it was not an IT1 that was overstuffed with detail.

[4]On 8 December 1998 and thereafter the IT3s from the many Respondents began to come in, and I will not go into each of them. Of course, they differ one from another but a number of points were taken such as that the claims, or some of the claims, were in any event out of time; that the Respondents were not and never had been Dr Malkan's employers; that so far as claims were against bodies, rather than individuals, they were not qualifying bodies within the meaning of the relevant Acts, the Sex Discrimination Act and Race Relations Act ; that the claims were unparticularised and, indeed, frivolous, and in any event, race discrimination and sex discrimination were denied. That gives a rather summary picture of the sort of opposition that the IT3s indicated.

[5]Perhaps because there were so many Respondents and because questions of the kind that I have indicated were being raised, on 21 June 2000 there was a pre-hearing review at the Employment Tribunal and on 7 July 2000 the Decision was sent to the parties. It was the Decision of the Tribunal at Birmingham, under the chairmanship of Mr S Ahmed, and it was in summary form; the Order itself was as follows:

"The tribunal considers that the applicant's claims of race and/or sex discrimination in relation to the 1 st , 2 nd , 3 rd , 5 th , 7 th, 8 th . 9 th 10 th , 11 th , 12 th , 13 th , 14 th , 15 th , 16 th , 17 th and 19 th respondents have no reasonable prospect of success. The tribunal therefore orders the applicant to pay a deposit of an amount of £150 against each of these sixteen respondents no later than 21 days from the date of receipt of this order as a condition of being permitted to continue to take part in the proceedings in the matter referred to above. (Total amount £2,400)."

It was not as if the Rule 7 application had succeeded in relation to every Respondent; there was no award in respect of the Sixth and Eighteenth. There was no award, either, against the Fourth, but the Fourth had dropped out.

[6]The Tribunal, in their Summary Reasons, said that it did not appear to the Tribunal that the Applicant had any reasonable prospect of success against any of the Respondents, with the exception of the Fourth, who had withdrawn, and the Sixth and the Eighteenth. They added that none of these Respondents was at any time the Applicant's employer or a qualifying body or a person concerned with the provision of vocational training. The Tribunal continued in their paragraph 3 that:

"The applicant is unable to establish any causal connection between his claims and all the respondents with the exception of the sixth and/or eighteenth respondent."

That left sixteen Respondents and the Tribunal said:

"Accordingly, the applicant is ordered to pay a deposit of £2,400 (16 x £150.00) as a condition of being permitted to take part in the proceedings relating to the above matter pursuant to Rule 7(4)……"

[7]On 9 August 2000, a Notice of Appeal was presented by Dr Malkan. On 30 January 2001 there was a directions hearing at the Employment Appeal Tribunal where it was finally directed that there should be a preliminary hearing in respect of the Notice of Appeal, in the ordinary way. On 29 June 2001, there was that preliminary hearing, before the Employment Appeal Tribunal sitting under Mr Commissioner Howell QC, and a number of directions emerged out of that. First of all, that the Summary Reasons were, for the purposes of the appeal, to stand as the full Reasons of the Tribunal. Secondly, only an amended Notice of Appeal was to go forward to a full hearing, in other words only that has come forward to us today. Thirdly that an affidavit was required from Dr Malkan as to one particular ground. Fourthly, that the Chairman's Notes were to be required on the subject of Dr Malkan's ability to pay (and as it will be seen, in fact, we ultimately got the Chairman's Notes of Evidence complete) and that the Respondents were finally given liberty to adduce evidence themselves.

[8]There was an amended Notice of Appeal, and that is what is before us, and, in effect, one ground (in relation to the Tribunal not giving Extended Reasons) goes because the Employment Appeal Tribunal has indicated that the matter should proceed as if the Summary Reasons were, for the purposes of the appeal, the full Reasons. That leaves five grounds, which we will deal with one by one.

[9]On 23 July of last year, Mr Malkan lodged his affidavit. On 29 August of last year the Chairman's commented on the Notice of Appeal and on Mr Malkan's affidavit and there were extensive Notes of Evidence prepared by the Chairman; indeed, they are not just Notes of Evidence, they are notes, also, of the argument that was received at the Employment Tribunal.

[10]The five separate grounds of appeal (though in fact they are headed only "Grounds 1, 2") divide themselves as follows, and the first is this:

"Ground 1 1 Contrary to rule 7(1) of the Tribunal Rules 1993 the Tribunal considered documents submitted by the First, Second, Third and Nineteenth Respondents in their bundle."

This requires one to look at Rule 7. Rule 7 is headed "Pre hearing review" "7 Pre-hearing review (1) A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, conduct a pre-hearing review, consisting of a consideration of - (a) the contents of the originating application and notice of appearance; (b) any representations in writing; and (c) any oral argument advanced by or on behalf of a party." I do not need to read (2) or (3). "(4) If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding [it is now £500, it was then £150] as a condition of being permitted to continue to take part in the proceedings relating to that matter. (5) No order shall be made under this rule unless the tribunal has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the order to comply with such an order, and has taken account of any information so ascertained in determining the amount of the deposit. (6) An order made under this rule, and the tribunal's reasons for considering that the contentions in question have no reasonable prospect of success, shall be recorded in summary form in a document signed by the chairman. A copy of that document shall be sent to each of the parties and shall be accompanied by a note explaining that if the party against whom the order is made persists in participating in proceedings relating to the matter to which the order relates, he may have an award of expenses made against him and could lose his deposit." I do not need, for immediate purposes, to read (7), (8) and (9), except that (9) does provide that no member of a tribunal who has been involved in the pre-hearing review shall be a party to the main hearing.

[11]We do not read Rule 7(1) as precluding the Tribunal from looking at material outside the IT1 and IT3, outside the representations in writing, and outside the oral argument. They have to be considered but there is nothing to say that only those matters may be considered. For example, if the representations in writing in a contract case include reference to the contract, why should not the contract itself be referred to at the preliminary hearing review? Moreover, if, at a preliminary hearing review in certain cases, it becomes necessary to consider a party's means under 7(5), surely it would be open to the Tribunal, and could not be seriously argued otherwise, that the means could be considered by reference to matters not in the IT1 and not in the IT3 and not otherwise falling within 7(1). For example surely in such a context, it would be not improper for a Tribunal to call for either an affidavit of means or for material documents such as payslips. So we do not see that there is anything in 7(1) that makes it automatically an error of law to consider documents going outside the specific headings of 7(1)(a), (b), (c); there is no error of law in that very first paragraph of the Amended Grounds of Appeal.

[12]The second sub-ground is this: the Tribunal refused to consider any documents in the Applicant's bundle, even when it was submitted that it was unfair to look at one party's documents alone. The position was that the Tribunal below had in front of it two bundles, an agreed bundle which included documents chosen for inclusion by Dr Malkan and, of course, also by other parties, and, secondly, a bundle that consisted only of Dr Malkan's proposed additional documents.

[13]The Respondents below opened the argument and referred to a number of documents. The Applicant, then in person, answered, and we have the Chairman's Notes of the course which the case took. Dr Malkan began his submissions at 2.15 pm. He began forthwith to refer to a document which the Tribunal took to be irrelevant to the business of the day, namely for the limited purpose of a pre-hearing review under Rule 7. The Chairman's Notes of the proceedings read as follows:

"2.15 Mr Malkan wanted to refer to Stephen Lawrence enquiry but told it wasn't relevant to the present applic. P.19.82 (Mr Malkan was asked what the relevance of the documents was) (on two previous occasions the tribunal put the quest. - no satisf. answer)"

[14]The Tribunal formed a view, as they were entitled to do. They said, a little later in the Chairman's Notes:

"[A was wasting time [A being the Applicant there] - he was told to forget about the background and show relevance]" and a little later: "(I told him we were not going to hear evidence despite his attempts to introduce evidence to the PHR)"

After a number of further pages of Chairman's Notes, one finds the Chairman noting this: "[I felt that Mr Malkan was now wasting time and trying to delay the proceedings to take it into a second day. He was therefore told that he had 10 more minutes to conclude his submissions and that this power was exercised under s.13(1) - he therefore had to conclude his submissions by 3.55 pm]" and the Chairman's Notes show that Mr Malkan did indeed continue and then summarised his case.

[15]It is, of course, right for an Employment Tribunal, especially when addressing a jurisdiction such as that under Rule 7, which is intended to be robust, inexpensive, speedy and provisional in its nature, to confine the parties to what the Tribunal regards as relevant on the day. Nothing in the Chairman's Notes suggests that any matter of true relevance which Dr Malkan wished to lay before the Tribunal was refused to him. He did continue until 3.55 pm; he had therefore had an hour and forty minutes on his feet on what is a relatively limited topic, but he says in his affidavit this:

"9. On re-convening, at the outset the Tribunal Chairman stated that he would only look at the applications, notices of appearance and submission and hence he refused to look at my submissions, which were in the form of a complete bundle. He addressed various questions, which I was made to answer without referring to any documents in my bundle. This completely took me aback and put this litigant in person to a serious disadvantage."

But the Chairman's Notes showed that it was the Lawrence Enquiry that there was the subject of the exclusion and that Mr Malkan was asked to satisfy the Tribunal as to the relevance of that and failed so to satisfy them.

[16]The Chairman's Notes, as we have already cited, refer to the Chairman refusing to hear evidence. Mr Malkan was, in effect, trying to give oral evidence there and then, in the course of argument, which was plainly not a proper course. We have seen nothing to suggest that the Chairman overstepped the mark in trying to confine Dr Malkan to what was truly relevant on the day, in other words, we find no error of law under this particular sub-heading.

[17]The third ground, which is the first under the ground marked "Ground 2" says this:

"Contrary to rule 7(5) of the Tribunal Rules 1993 the Tribunal failed to take any or any reasonable steps to ascertain the ability of the Appellant to comply with an order for a deposit to be paid."

The Chairman's Notes, however, show that Dr Malkan did give evidence as to his means. At the end of the process, after the Tribunal had ruled that the Applicant was to pay deposits, the Chairman's Notes have the heading "Evidence of Means", and then oral evidence was given by Dr Malkan, who affirmed, and the notes say as follows:

"I am employed as a Specialist Registrar. My gross income per annum is £32,000. £18,00.00 net"

That is explained as being £1800 per month which is £21,000 net a year. "No additional income apart from say my employment. Savings £3,000." On the next page of the Chairman's Notes, they say:

"My monthly outgoings - all the savings are going out gently. My outgoings are £3,000 per month. I will have to take an o/draft in the region of £10 - 15,000." a little later: "

I do not intend the pay the deposit" and also: "When I was doing private consultancy work I was earning C £100,000 a year".

[18]So, plainly, there was a step, and a reasonable step at that, taken by the Tribunal to ascertain Dr Malkan's ability to comply with the Order that was then under discussion, because he was especially sworn in to give oral evidence on the subject. There is no error of law in that part of the Notice of Appeal.

[19]Next, the Notice of Appeal says:

"Ground 2 4. Contrary to rule 7(5) of the Tribunal Rules 1993 the Tribunal failed to take account of any information as to the Appellant's means in determining the amount of the deposit."

Upon the Tribunal having gleaned the information which it did about Dr Malkan's means, it is argued that, nonetheless, it failed to take that material into account. We see no basis for that assertion. The Employment Tribunal does not say that it was irrelevant information which it gathered as to means. The Reasons obliged to be given by the Tribunal were only Summary Reasons; the Rule expressly so provides. It is true that in those Summary Reasons, there is no mention made of Dr Malkan's means but, even with Extended Reasons, and therefore a fortiori with Summary Reasons, one cannot take it that a consideration was not in mind simply because it was not expressly mentioned, see Retarded Children's Aid Society -v- Day and the dictum of Russell LJ. We see no error of law in this particular heading.

[20]Then the Notice of Appeal says:

"It was perverse to set the level of the deposit at the maximum level (£150) in respect of each Respondent thus ordering the Appellant to pay £2,400 where the Applicant was facing unemployment."

The Chairman's Notes show, on the evidence given to the Tribunal, that Dr Malkan was then employed as a Specialist Registrar, we have already cited part of the evidence to that effect; - "I am employed as a Specialist Registrar" There is a later reference that says:

"If I was working it would be different" which is not as clear as it might be, but it is immediately followed by: ""

When I was doing private consultancy work I was earning C £100,000 a year". And so, in context, it would seem to be that taking the two together, what was there said in evidence was:

"If I was working in private consultancy it would be different because I would be earning £100,000 a year"

. We do not see that reference to "If I was working it would be different" as undoing the clear evidence "I am employed as a Specialist Registrar" and "No additional income apart from say my employment".

[21]Even if Dr Malkan was really meaning to say that when he was employed, it was as a Specialist Registrar, it has to be remembered what the function of Rule 7(4) is. It is, in part, to deter a party, sometimes for his own good, from running hopeless claims or hopeless defences. That is part of the function of the Rule but it is also in part to provide a very modest fund from which costs can be awarded with the certainty of recovery, see Rule 14(8). In context, £150 per relevant Respondent is, in our view, not an excessive amount, nor does it seem perverse, given £3000 of savings, a gross income of £32,000 and an apparent availability of an overdraft of £10-15,000.

[22]It is always an extremely difficult task for an Appellant to make good a ground of perversity; he has to show, in effect, that no Tribunal, properly instructing itself, could have concluded as the particular Tribunal has done. It is notable that in the case before us Dr Malkan was saying that he would not pay, not that he could not pay, any deposit. We do not see that this is a case where no reasonable Tribunal, properly instructing itself, could have concluded as the particular Tribunal did.

[23]Mr Panton urges upon us that there was a duty on the Tribunal to be fair on both sides and that the Employment Tribunal's conduct was unfair in excluding reference by Dr Malkan to his own separate bundle. But, as we have mentioned, it must be right for a Tribunal to take a view on what is relevant to the business of the day and also to have in mind the nature of the jurisdiction which it is exercising, which is here meant to be, as we have said, robust, speedy, inexpensive and leading to what is merely a provisional view and a provisional view, moreover, which as the Rules are careful to provide, shall not colour the later hearing, because, as we have seen, anyone who is involved in the earlier provisional view cannot sit on the later substantive hearing.

[24]What is relevant under Rule 7(4) is necessarily somewhat limited and the fact that more documents chosen by the Respondents below were referred to than the documents chosen by Dr Malkan is, of itself, of no significance. The Respondents began the case and so, necessarily, had to set it out and explain it in a way that later parties addressing the Tribunal did not need to do. In fact, Mr Stewart has carefully demonstrated that Dr Malkan was able to refer to documents in his own separate, unagreed, additional bundle, for example, our page 406 and our page 395. Moreover, there has been no particular document identified by Mr Panton which can be seen to have been relevant to consideration of the exercise of Rule 7 and yet which was excluded by the Tribunal notwithstanding that Dr Malkan had wished it to be considered.

[25]All in all, we have been unable to find any error of law and - of course, that is all we are concerned about - in the Tribunal's Decision, and accordingly dismiss the appeal. [ queries from Mr Panton - unclear on tape, unable to type] Mr Panton, one might think that, having pursued this simple matter of a deposit as far as it has already been pursued, has been grossly disproportionate. It really is a case where the parties ought to get on with the substantive questions between them and not play around on the fringe as to what is a relatively modest sum, £2,400 - relative to the costs of repeatedly litigating and now seeking even leave to appeal. We do not give leave to appeal.