DR A REZA v GENERAL MEDICAL COUNCIL [2002] UKEAT 320_01_0702

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 320_01_0702

Case No Appeal No. EAT/320/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DR A REZAAPPELLANT

GENERAL MEDICAL COUNCILRESPONDENT

Before

Mr Justice Burton

Lord Davies of Coity

Date 7 February 2002

[1]APPEARANCES For the Appellant MR BENJAMIN UDIJE (of Counsel) Instructed By: Messrs Webster Dixon Solicitors 21 New Fetter Lane London EC4A 1AW MR JUSTICE BURTON This is the Preliminary Hearing of an appeal by Dr Reza again st the General Medical Council. There was fixed for 18 December 2000 a four day hearing of Dr Reza's claim against the General Medical Council. It was not the first time, apparently, that he had litigated against them. On the day for which the hearing was fixed he faxed a letter to the Tribunal, 40 minutes before the hearing was due to start, saying that he would be too ill to attend the hearing, and asking that the case be transferred to another region.

[2]In so far as the letter requested a transfer, that application for transfer had been made previously and had been refused. The matter was considered by the Employment Tribunal at London Central on the day, 18 December, upon his non-attendance, there being Counsel present and ready to argue the matter on behalf of the Respondents for what would otherwise have been a four day hearing. The Chairman of the Employment Tribunal in the decision of the Tribunal said as follows in paragraph 2:

"Although the Applicant claimed to be unwell, he made no prior application for a postponement. He did not fax to us a copy of a medical certificate which might have confirmed his condition. He did, however, make a number of allegations which suggested that he might have stayed away for reasons other than his health."

[3]The Respondent's Counsel urged the Tribunal to dismiss the application, and it appears that he was making such submission "on account of the unreasonable behaviour of the Applicant, manifested over a period of time," and some part of that history, including its categorisation as unreasonable behaviour, was set out by the Chairman in his decision. It is, however, entirely apparent that the basis upon which the Tribunal was considering the question, notwithstanding such reference to unreasonable behaviour, was within its jurisdiction under Rule 9, sub-rule 3 of the 1993 Rules. The Chairman made that clear, even if it had not been earlier apparent, in the decision on the review of the earlier decision, which took place subsequently, before the same Tribunal, on 25 June 2001. Rule 9(3) reads as follows; "If a party fails to attend or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date: provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 8(5) and any written answer furnished to the tribunal pursuant to rule 4(3)."

[4]Mr Udije, on behalf of Dr Reza today, has submitted, while accepting that the Tribunal had a complete discretion under Rule 9(3) provided that they complied with its proviso, that in fact this Tribunal was not operating under Rule 9(3) in dismissing the application, but rather were carrying out some kind of mixture of Rule 9 and Rule 11, which does enable the strike out of a claim as being frivolous and vexatious, or generally unarguable; and he does so by reference in effect to the words, "unreasonable behaviour," to which we have already referred in the Tribunal's Decision. It is clear however, both from the Decision itself and, as we have said, from the subsequent review, that the Tribunal was exercising its discretion under Rule 9(3).

[5]The position was this. A very last minute application for an adjournment was made on the day. The Tribunal explained subsequently, in the review decision, that it appears that the background to this was that the Appellant had actually been away in India from 5 November, and was thus absent from the country through to the evening of 11 December. Even when he arrived back in England from India he took no further step after 11 December until 15 December, which is the Friday before the hearing on Monday the 18 th , when he then typed out the letter to which we have earlier referred. He did not even fax the letter on that day but, as we have indicated, only faxed it on the day of the 18 th itself, 40 minutes before the hearing.

[6]The Tribunal, faced with that evidence, which was all they had, was obliged and entitled to take two further steps. First they were entitled and obliged to look at the application that he had made, the IT1, and the only purpose for their doing so must, in our judgment, be to consider the nature of the case that was being put forward. It must therefore be right in those circumstances to say that a factor that can be taken into account is the apparent merit of the claim. This was not for the purpose of an application to strike out, but as a factor which the Tribunal was bound to take into account, namely what the nature of the case was; and the Tribunal referred in terms to the previous history of the case in its Decision. Much more significant, however as it seems to us, is that it was also entitled to look at the file for the purpose of testing the information that was before it which was so exiguous, as we have set out; and it formed the view that it was not that he had simply failed to attend, sending instead a letter of a very exiguous kind only 40 minutes before, as a result of some unforeseen development, but, rather, as it seems to us not only reasonably but rightly, that this cannot have been a last minute failure to turn up, because he had also failed to comply with an order of 18 July 2000 made at the Directors Hearing that he produce and exchange a witness statement, or indeed with any of his obligations in respect of disclosure. Thus his case, when, as it now appears, he left the country on 5 November, intending only to return on the 11 th December, was in no way ready for trial, and he had taken no steps to prepare for a four day hearing.

[7]Thus the Tribunal, in referring to all this, was able to conclude that this is not a case in which there was some fortuitous reason for the application for adjournment, but that the Appellant had either never intended to attend at all or certainly was not able to rely upon some last minute development to justify his non-attendance, and consequently so as to seek an adjournment of a hearing for which he would not have been ready in any event. In those circumstances, even had there not been a review, we would have been satisfied that the Decision of the Tribunal fell well within its discretion under Rule 9(3). However, as it happens there is a clarificatory decision on 25 June, which, pursuant to the Appellant's right to do so, he had obtained by way of review, and, on that occasion, he attended with Counsel, Miss Shepherd. All matters, no doubt including those which were put forward before us today, were urged before the Tribunal. Having heard counsel, including looking at a document dated 16 January 2001, which sought retrospectively to explain such medical condition as he alleged that he had had, but which added no credence whatever to his account, either so as to change its mind or indeed such as in any way to alter or supplement the evidence that had been before it in December, and having given the fullest opportunity for a re-hearing, the Tribunal reiterated its decision under Rule 9(3). We have no reason to doubt that that was not only a decision which was well within its discretion, but, once again, the right decision.

[8]Mr Udjie today has not pursued with any force the Appellant's complaint that the Tribunal made a costs order on the first application, and, in our judgment, rightly so, and indeed there can be no substance in any challenge by way of appeal because, whatever might have been the position in relation to the costs order made on the first occasion in the absence of representations by the Appellant, the matter was in the event re-heard, with Counsel present, on 25 June, and the order was repeated. We conclude that there is no ground whatever to challenge the decisions, either the original decision or the review decision, of the Tribunal, and consequently this appeal is dismissed.