(1) THE SENATE OF SURGERY (2) THE ROYAL COLLEGE OF SURGEONS (3) THE PRESIDENT OF THE ROYAL COLLEGE OF SURGEONS (4) THE SPECIALIST ADVISORY COMMITTEE IN UROLOGY (5) THE CHAIRMAN AND MEMBERS OF THE SPECIALIST ADVISORY COMMITTEE IN UROLOGY v (1) MR R CHAUDHARY (2) THE SPECIALIST TRAINING AUTHORITY OF THE MEDICAL ROYAL COLLEGES (3) THE REGIONAL POSTGRADUATE DEAN (4) NHS EXECUTIVE HQ (5) DEPARTMENT OF HEALTH [2003] UKEAT 0919_03_1712

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0919_03_1712Case No Appeal No. UKEAT/0919/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) THE SENATE OF SURGERY (2) THE ROYAL COLLEGE OF SURGEONS (3) THE PRESIDENT OF THE ROYAL COLLEGE OF SURGEONS (4) THE SPECIALIST ADVISORY COMMITTEE IN UROLOGY (5) THE CHAIRMAN AND MEMBERS OF THE SPECIALIST ADVISORY COMMITTEE IN UROLOGYAPPELLANT(1) MR R CHAUDHARY (2) THE SPECIALIST TRAINING AUTHORITY OF THE MEDICAL ROYAL COLLEGES (3) THE REGIONAL POSTGRADUATE DEAN (4) NHS EXECUTIVE HQ (5) DEPARTMENT OF HEALTHRESPONDENT
Before
His Honour Judge Peter ClarkLord Davies of CoityDate 17 December 2003
[1]APPEARANCES For the Appellants MR P MEAD (Of Counsel) Instructed by: Messrs Carter Lemon Camerons Solicitors 11 Breams Building London EC4A 1DW For the 1st Respondent For the 2nd to 5th Respondents MR R CHAUDHARY In Person RESPONDENTS NEITHER PRESENT NOR REPRESENTED JUDGE PETER CLARK This litigation has a long and tortuous history, largely set out in the judgment of Mummery LJ delivered on 15 May 2003 in various appeals heard by the Court of Appeal [2003] EWCA Civ 645 , two of which involved appeals from divisions of the Employment Appeal Tribunal on which I sat.[2]We shall focus on the present appeal, which is brought by the 2 nd - 6 th Respondents in what have become known as the Manchester 1 proceedings against an order made by an Employment Tribunal sitting at Manchester under the Chairmanship of Miss A F W Woolley, on 29 September 2003 permitting the Applicant Mr Chaudhary to amend his Originating Application in these proceedings dated 23 December 1998. Extended Written Reasons for that order were promulgated on 8 October 2003. A substantive hearing in the combined Manchester 1 and 2 proceedings is listed for 4 weeks commencing on 12 January 2004.[3]The principles upon which permission to amend an Originating Application is granted or refused can be found in the judgment of Mummery P in Selkent Bus Co Ltd v Moore [1996] IRLR 661 , to which the Employment Tribunal was referred. The heart of the Employment Tribunal's reasoning, we think, is at paragraph 22 of their Extended Written Reasons where they say this:
"22. Both the applicant and Mr Mead put before us the report of the cases of Selkent Bus Company Limited v Moore [1996] IRLR 661 in which the principles applying to consideration of an application to amend are set out. We have read that report and reminded ourselves of the principles. In our view this is clearly not a minor correction of clerical or typing errors. In many ways, however this proposed amendment is in our view an addition of factual details to existing allegations and it is also an addition or substitution of other labels for facts already pleaded. We have to decide whether it is a new cause of action. We conclude that in essence it is not. It is true that the original pleading did not make the second to the sixth respondents alleged liability clear but at all times the applicant has said that those various parties had made rules, policies and decisions which impacted through other persons' decisions on him."
[4]We accept the Harvey formulation of categories of amendments. They are:
"(i) amendments to the Originating Application which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of claim (ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim, and (iii) amendments which add or substitute a wholly new claim or causes of action which is not connected to the original claim at all."
[5]The principal question for us in this appeal is whether, reading paragraph 22 to convey that the present proposed amendment fell within category 2, as both Mr Mead and Mr Chaudhary, we think correctly, submit is the case, the Employment Tribunal were wrong to so categorise this amendment.[6]The facts pleaded in the Originating Application allege direct or indirect discrimination or victimisation under the Race Relations Act 1976 against the 1 st and 7 th Respondents separately and against the 8 th and 9 th Respondents as being vicariously liable for the acts of the 7 th Respondent. We are no longer concerned with the claim against the 1 st Respondent which the Court of Appeal has held, upholding the Employment Tribunal Chairman and this Appeal Tribunal below, is one which, by virtue of Section 54(2) of the Race Relations Act 1976, the Employment Tribunal has no jurisdiction to hear.[7]As to the 2 nd - 6 th Respondents, at its highest the claims are against those parties as principles in the Originating Application. Whether or not those claims are based on the proposition that those Respondents made rules, policies and decisions which gave rise to liabilities as principals to the Applicant we need not investigate further. We say at its highest because these Respondents have in the past indicated an intention to apply to the Employment Tribunal for the claims against them to be struck out on the basis that they disclose no cause of action. However, that application mentioned by a Chairman, Mr C J Chapman sitting on 25 July 2000 have not been pursued to a hearing, probably as a result of the appeal process intervening.[8]What is proposed by way of amendment is in our view a wholly new claim, that the 2 nd - 6 th Respondents are liable as secondary parties, having aided and abetted the 7 th Respondent in the discriminatory act alleged against him arising out of his decision contained in a letter to the Applicant dated 15 December 1998.[9]That new claim is dependent on factual allegations raised for the first time in the Manchester 1 proceedings in the proposed amendment dated 1 October 2003; necessary in an attempt to bring the Applicant's case within the House of Lords formula for the application of Section 33 of the Race Relations Act to be found in Anianwu v South Bank University [2001] IRLR 305 . Mr Mead points out that the majority of those allegations (excluding the non-specific Particular (vi)) go back to 1996/1997 and would have formed the basis of a similar claim against these Respondents, Appellants before us, in proceedings commenced in the Southampton Employment Tribunal by the Applicant on 2 December 1997, which claims were held to be statute-barred. A decision in turn upheld finally by the Court of Appeal.[10]In these circumstances we are satisfied that Miss Woolley's Employment Tribunal erred in concluding, that this was a proposed Category 2 amendment. In our judgment it fell fairly and squarely within Category 3. Thus the Applicant cannot show the necessary causative link between the claim advanced against the 2 nd - 6 th Respondents in the Originating Application, putting it as we have said as its highest and the new claim now sought to be advanced by way amendment. See Housing Corporation v Bryant [1999] ICR 123 . It follows from that conclusion that the Employment Tribunal ought to have considered, but did not consider the question of limitation when adjudicating on this amendment application.[11]In these circumstances we shall allow this appeal. The question then arises as to what course we should take. Mr Chaudhary points out that he presently has a further application to amend the Manchester 1 Originating Application, now before a Chairman for adjudication. He asks us to remit this amendment application, if the appeal is allowed for reconsideration by a fresh Chairman or Employment Tribunal. Mr Mead invites us to determine the matter ourselves exercising our powers under Section 35(1) of the Employment Tribunal Act 1996; a course taken by the Employment Appeal Tribunal in Selkent .[12]We prefer to adopt the approach suggested by Mr Mead. Applying the Selkent principles we have concluded:(1) that this is a substantial alteration to the Applicant's case making new factual allegations in these proceedings which change the basis of the existing claim(2) it is not a case in which time ought to be extended. The new case relies principally although not exclusively on factual matters relevant to the Southampton proceedings commenced in December 1997, themselves held to be time-barred by the Court of Appeal(3) this was a late application(4) by refusing the application the Applicant will suffer little hardship, as this Employment Tribunal found. He can pursue his original claim against the 2 nd - 6 th Respondents in the Manchester 1 proceedings. In our judgment the greater hardship lies with the 2 nd - 6 th Respondents, who face the additional costs of a prolonged substantive hearing and who will, if the amendment is granted, be deprived of a strong limitation defence.[13]In these circumstances, we shall refuse the amendment.