DR M F SOLIMAN-HASSAN v GENERAL MEDICAL COUNCIL [2004] UKEAT 0255_04_0505

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0255_04_0505Case No Appeal No UKEAT/0255/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR M F SOLIMAN-HASSANAPPELLANTGENERAL MEDICAL COUNCILRESPONDENT
Before
His Honour Judge Peter ClarkDate 5 May 2004
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent MR A GEORGE (of Counsel) Instructed by: General Medical Council 178 Great Portland Street London W1W 5JE SUMMARY Practice and procedure Consolidation Order - insufficient opportunity given to the Applicant to object - procedural irregularity; BUT; Order plainly and unarguably right ( Bache -v- Essex CC ), Therefore appeal dismissed. HIS HONOUR JUDGE PETER CLARK Dr Soliman Hassan (the Applicant) is of Egyptian origin and an Austrian national. He has presented seven separate Originating Applications to the London (Central) Employment Tribunal complaining of breaches of the Race Relations Act 1976 arising out of his various attempts to obtain registration with the General Medical Council (the Respondent) for the purpose of practising medicine in this country.[2]The first application (ET 2203260/03), presented on 2 July 2003, was dismissed by an Employment Tribunal sitting on 17 September 2003 on jurisdictional grounds. That Decision, promulgated with Extended Reasons on 4 December 2003, was the subject of a review application by the Applicant, itself dismissed. Both those Decisions are the subject of appeal proceedings to the EAT with which I am not today concerned.[3]The present appeal (UKEAT/255/04/MAA) is brought against an Order of a Chairman dated 17 February 2004 directing that the remaining six applications be conducted and heard together. I note, from the bundle of documents attached to the Applicant's written submissions in this appeal (he having elected not to attend this hearing) that on 6 April the Tribunal gave notice to the parties of a hearing for directions fixed for 12 May at which consideration will be given to the Respondent's application for these remaining claims to be struck out.[4]The point taken by the Applicant in this appeal concerns the operation of Rule 20(2) of the Employment Tribunals Rules of Procedure which provides:
"The Tribunal shall only make an order under this rule if -" [that is to combine proceedings] "(a) each of the parties concerned has been given an opportunity at a hearing to show cause why such an order should not be made; or (b) it has sent notice to all the parties concerned giving them an opportunity to show such cause."
What happened on this occasion, it would appear from the Applicant's account, which is not contradicted by Mr George, who appears today on behalf of the Respondent, is that the Tribunal wrote to the parties on 12 February 2004 indicating that a Chairman was considering whether to combine the six remaining cases and asking for the parties' reasons not to do so by 26 February.[5]The Order combining the remaining proceedings was then made on 17 February, before, it would seem, any response had been received from the Applicant, who opposes such an Order; and before the closing date of 26 February. Mr George has referred me to earlier correspondence between the parties and the Tribunal, but I am not satisfied that those letters deal directly with the question of consolidation of the remaining applications. In these circumstances I accept the Applicant's principal submission that he was not given a proper opportunity to show cause why an Order under Rule 20 should not be made.[6]That raises two possibilities: either I should allow the appeal and remit the matter to an Employment Tribunal for fresh consideration of the consolidation question, based on oral or written representations from the parties, or, and this is Mr George's submission in the appeal, I should consider whether the Order made is plainly and unarguably right, bearing in mind the written representations which are before me, but were not before the Employment Tribunal Chairman. Authority for the latter course in an appropriate case is to be found in Bache -v- Essex County Council [2000] IRLR 251 (CA) - see per Mummery LJ paragraph 35(5) and Ferris J, paragraph 42.[7]The Applicant submits that his cases can be divided into three, those cases relating to his application to the Respondent for full registration, those relating to his application for limited registration and those relating to his application for specialist registration. Mr George accepts that distinction within the group of six cases, but submits that these were three different routes to arrive at the same goal, which in the case of the Applicant gives the opportunity to practise medicine in this country. He submits, looking at Rule 20(1) of the Employment Tribunals Rules of Procedure, that there is a common question of law in certainly four out of the six remaining Originating Applications, being those cases relating to the Applicant's claims for full and limited registration, and that is whether the Tribunal has no jurisdiction to entertain those claims by virtue of section 54(2) of the Race Relations Act 1976 .[8]Secondly, he submits that there are common questions of fact to all six applications. Thirdly, that the relief claimed in each of the applications necessarily overlaps, and fourthly that, applying the overriding objective now to be found in Regulation 10 of the E.T. Procedure Regulations 2001, it is for the Tribunal to deal with proceedings expeditiously and that combining the remaining six applications, in order to determine whether or not all or part of those applications should be struck out, and if not, what directions ought to be given in the remainder, particularly identifying the issues between the parties in the remainder of the applications, points inexorably to an Order combining the remaining applications.[9]I accept that submission; I can see no basis for proceeding with these claims in three sections, as the Applicant submits; that would lead to unnecessary delay and would prevent a Chairman from having an overview of all the outstanding claims, in order to give proper directions and consider the Respondent's strike-out claim. I am not concerned with the merits of that claim at this stage, and insofar as the Applicant's written representations go to the underlying merits, they have not assisted me.[10]Finally, he refers to the right to a fair trial, now to be found in Article 6 of the European Convention, incorporated into domestic law by the Human Rights Act 1998 . I do not consider that an Order combining claims brought by an applicant against the same respondent for hearing together can be said in any way to interfere with the Applicant's right to a fair trial.[11]In these circumstances, even if a procedural mishap has taken place in that the Order of 17 February was made before the closing date for written representations, having considered the representations that would have been submitted by the parties below, I have no hesitation in concluding that the Order combining proceedings was plainly and unarguably right, and on that basis I shall dismiss this appeal.