DR K SINGH v DEPARTMENT OF HEALTH [2002] UKEAT 1261_01_0411

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1261_01_0411

Case No Appeal No. EAT/1261/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DR K SINGHAPPELLANT

DEPARTMENT OF HEALTHRESPONDENT

Before

Mr Justice Burton

Date 4 November 2002

[1]APPEARANCES For the Appellant DR A K SINGH THE APPELLANT IN PERSON For the Respondent As Advocate to the Court (Amicus curiae) MR SEAN WILSON (of Counsel) Instructed By: Office of the Solicitor Department of Social Security & Health New Court 48 Carey Street London WC2A 2LS MR NIGEL GIFFEN (of Counsel) Instructed By: Treasury Solicitor MR JUSTICE BURTON (PRESIDENT) : This is the full hearing of an appeal by Dr Singh, against the dismissal of his claims in the Employment Tribunal sitting at London South, after the hearing of a preliminary issue on 6 September 2001.

[2]Dr Singh was, until his name was erased from the Register in July 1999, a General Practitioner, and his claims were originally against the local Health Authority, but his claim against that Respondent was dismissed at an earlier hearing on 2 March 2001, and his claim continued against the Department of Health and the General Medical Council. His claims were for unfair and constructive dismissal, by the two Respondents or either of them, on the basis that they were employers, for the purposes of employment legislation, and further, that there was race and sex discrimination, on the basis that he was to be regarded as an employee for the purposes of those acts as a result of the wider definition of the word "employee" for the purposes of those acts.

[3]He also sought to bring, what he described as "free-standing complaints", against both Respondents under the Human Rights Act 1998 and, by reference to what he called "European Legislation". The unanimous conclusion of the Employment Tribunal, after the preliminary issue, was as follow:

"(i) The Applicant is not an 'employee' for the purposes of the Race Discrimination Act 1976 or Sex Discrimination Act 1975 and the Applicant's claims of unfair / constructive dismissal against either or both Respondents are dismissed for want of jurisdiction and/or (ii) The Applicant's claims of race / sex discrimination against the Second Respondent are excluded by virtue of Section 54 of the Race Relations Act 1976 and Section 63 of the Sex Discrimination Act 1975 , and/or (iii) The Tribunal has no jurisdiction to entertain any free-standing complaints against either Respondent under the Human Rights Act 1987 , and/or (iv) The Tribunal has no jurisdiction to entertain free-standing claims of incompatibility with European legislation in respect of the various actions allegedly taken by employees of the First Respondent and/or Second Respondent, in particular under the Equal Treatment Directive 76/207/EEC and Title 4 of Council Directive 93/16/EEC . (v) The Tribunal declares that there remain no claims over which an Employment Tribunal has jurisdiction and the Originating Application is therefore dismissed."

[4]In the course of the decision a number of substantive issues were decided. The first was that the Appellant was not an employee within either the definition of employment, for the purposes of the Employment Rights Act, or the extended definition for the purposes of the Race Relations Act and the Sex Discrimination Act. Secondly, with regard to his complaint, so far as concerned the General Medical Council, the fact that he had appealed his erasure by the General Medical Council to the Privy Council was relied upon by him, as against the GMC, as an internal appeal, so that, on his case, the General Medical Council was a qualifying body within Section 13 of the Sex Discrimination Act 1975 and Section 12 of the Race Relations Act 1976 , in that a discrimination claim could lie against a qualifying body if there is no appeal to an outside body. Mr Singh contended, and the Employment Tribunal disagreed with that contention, that the appeal to the Privy Council should be treated as an internal appeal, rather than an appeal to an outside body, giving him an entitlement to claim against the GMC as a qualifying body. That argument, as we have indicated, was also rejected.

[5]Finally, the Tribunal dealt with the question of time. So far as time is concerned, they concluded as follows, in paragraph 21:

"21 The Applicant's erasure from the relevant Medical Register was not finally complete and crystallised until the letter of July 2000 and, in relation to that date, his Originating Application presented at this Regional Office on 2 October 2000 is plainly 'within time' of the 3-months period from that date. ..."

That, of course, is the crystallisation of the erasure in respect of which he was complaining against the General Medical Council, which had led to the appeal to the Privy Council, which was only finally decided, Dr Singh has told us, on 6 July 2000. The Tribunal continued:

"As for the often difficult question of continuous discrimination, we have no doubt that the furthest back that the Applicant could argue such a case would be the penalty against which he appealed on that occasion, which was in turn a penalty based on his failure to re-train. The difficult nature of the Applicant's argument is, in our judgment, highlighted by the fact that by alleging discrimination by the GMC pending the final outcome of the 'appeal procedure' he is thus, by implication, including in his argument an allegation that the decision of the Privy Council to dismiss his appeal (the appeal procedure) was part of the tainted discrimination process. That in our judgment cannot conceivably be the correct legal position."

[6]Then, the Tribunal continued, as follows, by reference to the Department of Health, which was the First Respondent:

"22 As for the First Respondent, it was by no means clear what involvement the Applicant alleged they had in the recent events in 1998 / 1999 / 2000. He had not worked as a doctor on any kind of relationship with any kind of Health body during that period. He had never brought a claim before an Employment Tribunal at any stage over the years 1993 onwards. Over that period it is clear that he had considered how and where he should pursue his various claims and he did not come to an Employment Tribunal until the very end of the whole history. 23 By reason of his education and the documents before us, we could not see any reason why, if the Applicant believed that he had a valid and arguable claim in an Employment Tribunal, he had not argued those claims months, if not years, before the various claims which he brought before us and we could see no basis on which time could be extended within the principle of 'justice and equity' to allow an extension of time for any cause of action which was arguable, other than that which was arguable as a detriment from July 2000."

[7]The Notice of Appeal by the Appellant came for consideration before this Appeal Tribunal, differently constituted, for a preliminary hearing on 28 January 2002. There was, it seems, a number of grounds pursued before that Employment Tribunal, as justifying permission to proceed to a full hearing. The only two which merited consideration by Mr Recorder Langstaff QC in his judgment on behalf of the Tribunal, were:(1) The question of whether it could be said that the Appellant came within the wider definition of employment, for the purposes of relevant legislation and

(2) The issue as to whether it could be argued that the GMC was a qualifying body because the appeal to the Privy Council should be regarded as an internal appeal rather than an appeal to an outside body. Those two matters were considered and formed part of Mr Recorder Langstaff QC's judgment.

[8]As to the first, he did not give permission to pursue the claim so far as there was an allegation that there was a widening of the definition of employment for the purposes of the Employment Rights Act 1996 . That was plainly unarguable, and thus the employment claims were dismissed. However, what he permitted to be pursued was as to whether there was an arguable case that his claim fell within the wider definition of employment in, primarily, Section 78 of the Race Relations Act 1976 , which would depend upon an issue effectively as to whether there was a contract, not necessarily one of employment, between the Appellant as GP and the Department of Health.

[9]As to the second ground, the Employment Appeal Tribunal concluded that that was not arguable. Mr Langstaff QC said as follows, in paragraph 13:

"We see no merit in this ground of appeal. We do not think that the Privy Council could even arguably be described as something internal to the GMC for these purposes. We reject any arguable point of law here. It seems to us that there being no proper claim either that the terms and conditions which apply to Dr Singh's employment are in any way the responsibility or work of the GMC, there is no arguable appeal against the dismissal of his claim so far as the GMC is concerned."

He said that this was subject only to the argument in respect of Human Rights, but then concluded, at paragraph 18, that there was no jurisdiction in the Employment Tribunal, beyond that which is given to it specifically by statute, to consider what would be self-standing claims in respect of the Human Rights Act or European Law.

[10]In those circumstances, the appeal went forward only against the First Respondent, the Department of Health, and only in respect of the one point, as to whether there was a relevant contract primarily within the meaning of Section 78 of the Race Relations Act. It did not proceed at all, as against the GMC, in respect of whom the appeal was consequently dismissed.

[11]The matter, therefore, has come before us today, with only two parties before us, Dr Singh, representing himself, and the Department of Health, represented by Mr Sean Wilson of Counsel. However, because it was anticipated by Mr Recorder Langstaff QC and the Tribunal that it would be likely that Dr Singh would not have legal representation, Mr Recorder Langstaff QC, in paragraph 20 of the judgment of the Tribunal, said this:

"Although Dr Singh is fully entitled to represent himself at the appeal, for which we have given leave, we would urge him to seek representation, and to see if he may obtain the support of public funding to do so. If he has determined that either he will not, or cannot be represented, whether through lack of funds or for any other reason, by a fully qualified lawyer then in order to argue the difficult and important points which may arise we would direct that this court be asked to consider the appointment of an Amicus, in order to assist it."

[12]An Amicus has therefore been instructed, and we have been very grateful for the involvement of Mr Nigel Giffen who put in, I think last week, a full skeleton argument, in which he sought to pick out the points of law which would be relevant for consideration by this Tribunal in respect of Dr Singh's appeal. We should say a word about Dr Singh, who plainly feels extremely aggrieved, rightly or wrongly, about what has happened to him, and has brought not only the proceedings by way of challenge of his erasure in the Privy Council but also, it seems from documents that we have been shown by him, judicial review and injunction proceedings in the Administrative Court as long ago as 1995. He has, I think, not fully appreciated the status of this Appeal Tribunal, namely that we do not consider questions of fact but only questions of law. He certainly also has not appreciated the consequence of the decision of this Employment Appeal Tribunal, or, if he has appreciated that, he has not acted upon any appreciation, such decision of the Employment Appeal Tribunal not having been, of course, appealed by him, namely that this appeal is to be pursued only on the one point, and only as against the Department of Health. He still persists in seeing his claim, understandably from a lay point of view, because his real complaint, justified or otherwise, is in respect of his erasure, as being against the General Medical Council. He called that, several times in the course of his submissions today before us, his primary action, and his actual appeal against the Department of Health he called only a secondary action. The General Medical Council is however, not before us today. The GMC has been dismissed from the proceedings by the Employment Tribunal, and any appeal against that dismissal has been dismissed by this Appeal Tribunal, by the judgment of Mr Recorder Langstaff QC.

[13]Consequently, today, we have only to consider the position as between Dr Singh and the Department of Health, with the benefit of the intervention of the Amicus. Two points have arisen for immediate consideration this morning, together with a third consequential upon the second. The first point is, that in the course of his skeleton, and towards the end of it, the Amicus has raised a potential point which is additional to that which was argued below and before the Employment Appeal Tribunal before Mr Recorder Langstaff QC, and for which permission was given. That point is a reference to Sections 75(2)(a) of the Race Relations Act 1976 and Section 85(2)(a) of the Sex Discrimination Act 1975 . The argument is that, if it were found that the Employment Tribunal erred in its conclusion that there was no contract to which Dr Singh was a party between him and the Secretary of State, such as to enable him to bring himself within the provisions of Section 78 of the Race Relations Act, it might be capable of being said that he and other GPs were providing service for the purposes of a Ministry of the Crown or Government Department within the meaning of Section 75(2)(a). That is an argument which, as we have indicated, was nor run or referred to below, nor has become the subject of any appeal, nor brought before the Employment Appeal Tribunal, nor in any way raised or adopted by Dr Singh, who has indeed, in making his comments on the argument in his own skeleton, referred to it as not applicable, and it has only surfaced as a learned afterthought by the Amicus. The Respondent, through Wilson, has indicated that it would, if necessary, attempt to deal with this point today, but, plainly, it is a wholly new and important point which might, Mr Wilson has accepted, involved some consideration of facts, or a wider consideration of the context, irrespective of the question as to whether the appeal otherwise proceeds today. This therefore is the separate question, as to whether a fresh point under Section 75 of the Race Relations Act can, or should be, tacked on at short notice by the Amicus.

[14]The second point that the Amicus properly raised was in paragraph 66 of his skeleton, namely the last paragraph, in which he referred to the paragraphs of the Employment Tribunal's Decision, from which we have quoted, with regard to time. We have canvassed these questions with Dr Singh and with Mr Giffen and with Mr Wilson. It is quite plain that there had been no fresh act, or detriment, since July 2000 and further, that there has been, as was made quite plain by the Employment Tribunal in paragraph 22 of its Decision, no involvement at all of the First Respondent, the Department of Health, the only surviving Respondent on this appeal, since at any rate 1998.

[15]The question that was resolved by the Employment Tribunal was that, as set out in paragraph 23, there was no basis on which time could be extended within the principle of justice and equity to allow an extension of time for any cause of action which had arisen prior to July 2000, technically in any event, 28 June 2000, because that would be three months before the issue of the Originating Application, on 28 September 2000.

[16]Dr Singh, because he pursues still the contention which was unsuccessful before the Employment Tribunal, and unsuccessful before this Tribunal before Mr Recorder Langstaff QC, is able only to make this point, namely that, so far as he is concerned, the dismissal by the Privy Council of his appeal on 6 July is in some way to be held relevant to the issue as against the Department of Health. I do not know whether he puts it this way because, of course, of the mind set that he still has that his real target is the General Medical Council, and his reluctance to accept that they are no longer parties to this appeal. His case as against the General Medical Council, rejected by the Employment Tribunal, was that the Privy Council should be seen as the final culmination of the process, because he does not accept that it was an external court case but rather regards it as an internal appeal. That argument was rejected, as we have indicated, and in any event the General Medical Council are no longer parties. At any rate, it could not be relevant to the Department of Health, but, even if it were, the argument has, as we have indicated, been firmly rejected both here and below.

[17]Absent, therefore, any question arising out of the Privy Council decision on 6 July, there is, it seems to us, clearly no detriment that could be relied upon. In any event in the light of the decision by the Employment Tribunal, which in this regard i.e. in relation to limitation, has not been appealed, and/or as to which he has had no permission to pursue an appeal, although Mr Giffen has put forward all matters that he could see on behalf of the Appellant properly capable of being presented, when he was asked specifically whether he could identify any point that was arguable, he was unable to do so, and Mr Wilson, of course, on behalf of the Respondents, has made the same submission.

[18]We are satisfied therefore that the claim made by Dr Singh would fail, and has failed, against the Department of Health, irrespective of the resolution of the issue before us today as to whether there is or was a contract between Dr Singh and the Department of Health as a result of Section 78. The question has to be asked therefore, what is the point of this appeal?

[19]If this appeal is pursued, and the Department of Health is successful, they will as we shall indicate in a moment, simply have a fourth conclusion at this appellate level, that there is no contract between the GP and the Secretary of State. If this appeal proceeded, and Dr Singh were successful, then what result would ensue? The following, at best:(1) It might be that he would be successful on the basis simply of saying that the preliminary issue ought to be remitted for further consideration by the Employment Tribunal. I shall say a little more about that when considering the question before us head on.

(2) It might be that this Tribunal would have resolved all questions of fact or concluded that there were none outstanding, and concluded the matter of law in favour of Dr Singh. That would, therefore, resolve the preliminary issue in his favour, but of course, there would still remain the substantive claim to be tried, and there would be no substantive claim, because it has already been dismissed on time grounds by the Tribunal below and not appealed, and consequently there would be nothing to remit, and no point in remitting, and matters would be left entirely in limbo.

(3) There would, I suppose, be the possibility of an appeal by the Department of Health against the decision of Dr Singh to the Court of Appeal, just as there would be an appeal available or to be considered by Dr Singh against a finding in favour of Department of Health; but the matter would then go up to the Court of Appeal on an even more academic basis with even less chance at that appellate level of any facts being sorted out.

[20]We are therefore faced with a situation in which we have to decide whether to proceed with this appeal today, on this academic basis and knowing that, whatever the results of this appeal, it would do Dr Singh no good, because the matter could not be remitted to the Employment Tribunal, as his claim is already at an end.

[21]Therefore, we turn to consider the issue which we have had canvassed before us today, by all three of those making submissions to us, Dr Singh and the two Counsel, namely as to whether we should proceed. It is plainly open to an appellate tribunal such as this to hear a matter which is academic. The issue would be whether, within Section 78 of the Race Relations Act, the GPs, including Dr Singh, have a contract with the Department of Health. Mr Giffen has reminded us that the discretion exists, albeit that it is one that should be exercised with caution and, albeit that it would not, in this case, result in any relief at all for this Appellant. Clearly, a factor we have is that the Appellant is here, ready to argue the matter on a full hearing, although, of course, he has probably little to add in terms of law to that which can be put forward by Mr Giffen, the Amicus curiae, and we have had the benefit of his factual submission. But there has also been today the presence of both Counsel, Amicus curiae Mr Giffen and Mr Wilson, on behalf of the Department of Health, and consequently a degree of expense has been incurred. Mr Wilson submits that he is ready to argue the point, and that it is a matter of importance for the Department of Health to canvass the question of whether there is a contract between the Department of Health and a GP, and so to that end, he is united with Dr Singh, who also wishes us to hear the appeal, in which he is anxious to have the opportunity to make further statements to us. But the fact that the two parties are both, in those circumstances, inviting us to decide the point is, of course, in no way determinative, particularly where we have the benefit of Mr Giffen as Amicus urging caution, and where we have various serious matters to consider which we shall now tabulate, which lead us, as Mr Giffen rightly says, to exercise our own discretion.

[22]Is there a public importance in deciding this point today? We have had the benefit of a good deal of law put before us in skeleton arguments and bundles of authorities. What is clear, is the following: (a) The issue of whether there is a contract between a doctor in the National Health Service and the Secretary of State was part of the discussion of the House of Lords in Roy v Kensington, Chelsea and Westminster Family Practitioner Committee

[1992] 1 AC 624

. Lord Bridge of Harwich said this, at page 630 at D:

"I do not think the issue of the appeal turns on whether the doctor provides services pursuant to a contract with the Family Practitioner Committee. I doubt if he does and am content to assume that there is no contract."

And he continues at E. The reason why his conclusion was not necessary for decision in that case becomes clear:

"... it seems to me that the statutory terms are just as effective as they would be if they were contractual to confer upon the doctor an enforceable right in private law to receive the remuneration to which the terms entitle him." (b) The matter was also canvassed in the speech of Lord Lowry at 648 at D, where he says: "

Although there may well have been a contract for services I am not satisfied that there was." And he further says at 649G:

"The discretion which the scheme confers on the Committee is not typically characteristic of a contractual relationship, and the same can be said of the appellate and supervisory role given to the Secretary of State."

It is clear to us that, although there were therefore doubts expressed by the House of Lords as to whether there was a contract, that decision did not resolve the issue, certainly at that level, against there being a contract. However, there are three decisions of this Tribunal which can be and are relied upon by the Respondent, the Department of Health, as indicating persuasive authority at this appellate level that there is no such contract. The first, is the decision of Wadi v Cornwall and Isles of Scilly Family Practitioner Committee

[1985] ICR 492

in a judgment given by Peter Gibson J, as he then was. The Tribunal went as far as could be expected to have been gone, short of a final declaration when Peter Gibson J said this at 498F:

"We have difficulty in seeing that the Secretary of State has a contract with a doctor under the statutory scheme."

That decision of the Employment Appeal Tribunal in Wadi antedated Roy . It was not referred to in the Court of Appeal in Roy , which Court of Appeal decision was itself overruled by the House of Lords, but Wadi was referred to, and drawn upon with plain approval by their Lordships in the House of Lords in Roy . That is the first of the three relevant decisions of the Employment Appeal Tribunal which can be relied upon by the Respondent, and indeed were relied upon by the Employment Tribunal below in concluding that there was no contract between a GP and the Secretary of State. The second is a decision of this Appeal Tribunal given by Wood P reported in

1993 ICR 719

. On this occasion there was an even clearer conclusion expressed by this Tribunal following Roy and following Wadi , and Wood P said, as follows at 717H:

"We ourselves would respectfully add some comments. First, since the relationship of general practitioners with the Family Health Services Authority is based on statutory provisions there is no need to seek to explain it in contractual terms the sources of the obligations are statutory. Secondly, the relationship does not sound in the contractual concepts of offer and acceptance we doubt whether consideration can be spelt out."

[23]The third decision of the Employment Appeal Tribunal which has been put before us is the decision of the Employment Appeal Tribunal in Scotland, in which the judgment was given by Lord Johnston, on 26 March 1999, a case in which he was dealing with a dentist, although it is submitted by the Respondent that the position of dentists within the National Health Service is analogous. Lord Johnston said, at page 4 of the unreported transcript

EAT/1291/98

"In our opinion to categorise the relationship or arrangements between a dentist and the relevant Health Board as a contract of any sort is to ignore or fail to give adequate recognition to the fact that the agreement is tripartite ... the critical question to our mind is that there is no freedom essential to the creation of a mutual contract given to the Health Board when it comes to accepting an Applicant as an NHS dentist ... in our opinion therefore the relationship between the dentists and the relevant Health Board cannot ... be categorised as contractual."

[24]In addition to those three decisions of the Employment Appeal Tribunal there have been brought before us, by both Mr Giffen and Mr Wilson, two decisions in analogous cases. The first is the decision in the Court of Appeal in W v Essex County Council

[1998] 3 WLR 534

, a case in which Stuart Smith LJ gave the lead decision of the Court of Appeal, dealing with the question of the relationship between the local authorities and parents, arising out of the system of fostering, and Stuart Smith LJ said this, at page 550 at F:

"A contract is essentially an agreement that is freely entered into on terms that are freely negotiated. If there is a statutory obligation to enter into a form of agreement the terms of which are laid down at any rate in their most important respects there is no contract."

[25]Although Mr Giffen drew to our attention the case of R v Lord Chancellor's Department Ex Parte Nangle [1997] 1 AER 897, Mr Wilson in our judgment rightly pointed out the distinctions that can be drawn between that case and a case such as that of a GP or indeed a fostering arrangement. Mr Wilson also drew our attention to the fact that W v Essex County Council has been subsequently followed on appeal from this Tribunal by the Court of Appeal in Rowlands v City of Bradford Metropolitan Council (unreported transcript dated 26 March 1999) in which again Stuart Smith LJ gave the judgment.

[26]Mr Giffen has brought before us a number of possible arguments as to why we should not follow the logic of W v Essex County Council , or the persuasive authority of the three previous Employment Appeal Tribunals. He has submitted that, on a proper construction of the legislation, the contrary could be argued. He has also drawn attention specifically to two matters:(1) That there has been publicity – none of this, of course, was before the Employment Tribunal below, nor indeed is it yet before us in documentary form, although he has quoted from it in his skeleton argument – as to matters which are colloquially called negotiations about GP contracts, and he would wish to take us through some of those documents, in order to seek to draw inferences from them, albeit that the Respondent has produced today, but we have not yet assimilated, substantial further documents, which no doubt are intended to explain the context in which reference is made to the other matters.

(2) Mr Giffen has drawn our attention to the fact that under Schedule 3 of the National Health Service General Medical Services Regulations 1992 , at paragraph 25, a doctor gives, it seems, to the Health Authority, as part of his application to them, an undertaking to be bound by the terms of Service. Mr Giffen has sought to argue that that may be a ground for suggesting that there is a contract in some way with the Government, with the Health Authority acting as agent, over and above what would in any event be the statutory requirements laid down by the Regulations for conduct by the GP. This is, of course, not a matter that was canvassed before the Employment Tribunal, and no examination of the question of agency which would be an essential part of the argument was carried out. Mr Giffen has a number of other arguments.

[27]Mr Wilson would, summarising his position in short terms, not only so as to support the conclusions of the authorities to which we have referred, but, put succinctly, that it could not be that there could be a contract with the Secretary of State where there is no direct communication or contact at all, unless agency has been proved, which it has not, and where the Secretary of State is not, as I understand his submission, involved either in appointing or directly supervising or terminating the alleged contract of the GP.

[28]Such would be the argument which Mr Wilson submits to be of importance for this Tribunal to decide today, now that we are here. The second matter, that is canvassed correctly and properly by Mr Giffen, is as to whether, even assuming there were public importance in the point, this case is an appropriate vehicle for such to be decided. The Employment Tribunal below regarded themselves as bound by the Employment Appeal Tribunal decisions to which we have referred or at any rate that were referred to them, and went into this matter only in very short compass. The documents which have now been produced, or at any rate threatened to be produced, on the issue of GP contracts were not before the Tribunal, nor were any issues of agency.

[29]We turn then to our conclusion as to whether in our discretion we should permit this plainly academic question to be determined before us.(1) We are very influenced by the fact that this case is at an end and could not be remitted and could do no good to Dr Singh. We are only, therefore, considering the question as to whether in the interest of others than Dr Singh the point can and should be resolved now.

(2) The case in our judgment is not properly ready for the kind of full consideration which alone Mr Wilson really is able to say would be of any benefit. He says that, although there have been previous decisions on which he relies, there has not yet been a full consideration of the matter, and certainly not one since the new entity, the Primary Care Trust, came into existence; although it is a very important part of his submission in his own skeleton argument that the arrival on the scene of those trusts makes no difference so far as the question of the existence or otherwise of a contract is concerned, because they simply replace previous similar bodies.

[30]We conclude that the case is simply not a good vehicle for that kind of fresh full consideration, if it is required:(a) The documents to which we have referred have only come flooding in at the last minute, and are not in any position to be assimilated, certainly at an appellate level.

(b) The question of agency has not been explored at all.

(c) There has been thrown in – and we make no criticism at all, rather the contrary, of Mr Giffen – at the last minute the extra point which it appears to us to be impossible to resolve properly today, under Section 75 of the Race Relations Act. Mr Wilson has already indicated that it may be that some facts will need to be considered in order for that properly to be resolved, but in any event the whole context would need to be looked at in detail, not simply as something added in at the last minute. Mr Wilson has accepted that for his part, they are not fully able to deal with it, and in any event it has not been adopted by Dr Singh as part of his appeal.

[31]We are entirely satisfied that this case would be a wholly inappropriate vehicle, and certainly wholly inappropriate if there were a substantive decision by us, and the matter were then to be taken one way or the other up to the Court of Appeal, who would find the whole matter completely unsatisfactorily dealt with. Nor in our judgment is there any necessity for the matter to be dealt with now. A decision would provide no benefit whatever for Dr Singh, and the case would, particularly in its present unsatisfactory form, take the law no further forward than it is at present, when the law is stated in the lengthy list of appellate authorities to which we have referred. In those circumstances, in our discretion, we conclude that is appeal is academic and moot, and should not proceed and is dismissed.