THE HOME OFFICE v 1) MS Z MORRIS 2) MR K MUSTAFA 3) MR G SOROUJI 4) MRS L MERLIN 5) MRS F HAMEZIA 6) MR S NASARI 7) MR H EL-SHARIF [2005] UKEAT 0799_04_2402

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0799_04_2402Case No Appeal No. UKEAT/0799/04/DZM & UKEAT/0800/04/DZM & UKEAT/0801/04/DZM & UKEAT/0860/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE HOME OFFICEAPPELLANT1) MS Z MORRIS 2) MR K MUSTAFA 3) MR G SOROUJI 4) MRS L MERLIN 5) MRS F HAMEZIA 6) MR S NASARI 7) MR H EL-SHARIFRESPONDENTS1) MR G SOROUJI 2) MR H EL-SHERIFAPPELLANTSTHE HOME OFFICE AND OTHERSRESPONDENTSMR S MUSTAFAAPPELLANTTHE HOME OFFICE AND OTHERSRESPONDENTSTHE HOME OFFICEAPPELLANT1) MS Z MORRIS 2) MR K MUSTAFA 3) MR G SOROUJI 4) MRS L MERLIN 5) MRS F HAMEZIA 6) MR S NASARI 7) MR H EL-SHARIFRESPONDENTS
Before
His Honour Judge McMullenDate 24 February 2005
[1]APPEARANCES For The Home Office For Ms Z Morris For Mr S Mustafa For Mr G Sorouji and Mr H EL-Sharif For Mrs L Merlin, Mrs F Hamezia and MR S Nasari MR ADAM TOLLEY (of Counsel) Instructed by: The Treasury Solicitor (Employment Team) Queen Anne's Chambers 28 Broadway London SW1H 9JS MR D MORRIS (Representative) MS E BANTON (of Counsel) Instructed by: Messrs Levenes Solicitors Ashley House 235-239 High Road Wood Green London N22 8HF MS L REED (of Counsel) Instructed by: Lambeth Law Centre- Race Discrimination Centre Unit 46 Eurolink Business Centre 49 Effra Road London SW2 1BZ No Appearance or Representation By or on Behalf of the Appellant SUMMARY Practice and Procedure ET did not err in not striking out the Claimant's multiple claims, holding that a fair trial was possible notwithstanding disgraceful and unreasonable conduct by the Claimant, and it must have concluded that the case passed the test in Terry v Hoyer (UK) Ltd (2001) EWCA Civ 678 at paragraphs 16 and 32. There was no appeal against the award of costs in favour of the unsuccessful Respondents. The Home Office appeal to seek further costs was out of time. HIS HONOUR JUDGE McMULLEN QC This case is about a failed attempt by The Home Office and six other Respondents to a claim of race discrimination and victimization to strike out the claim on the ground that Mrs Morris's conduct of the proceedings had been scandalous and vexatious.[2]We will refer to the parties as the Claimant Mrs Morris; The Home Office; and Mr Sorouji, Mr El-Sharif and Mr Mustafa as the three individual Respondents. The judgment represents the views of all three members. Preliminary applications[3]At the outset of these appeals, at our invitation, Mr Tolley indicated the way in which he was proposing the case could be most expeditiously dealt with. It was his suggestion that because we are in the shadow of a 20 day hearing about to commence next Monday, it was most important that the issue of the strike-out be determined today and, if possible, with a reasoned judgment, even in short form, leaving his appeal on costs to be determined either later today or at some other time if time were not available. That is endorsed by Counsel representing the other Respondents to the proceedings below.[4]Mr Morris, representing his wife, the Claimant, considers that the whole of the appeal should be heard today. Mr Tolley's approach is what commended itself to us provisionally at the outset. We will of course attempt, within the time made available by directions in this case, to hear both of the substantive issues and to give judgments on both. But if we are unable to do that we will focus entirely upon the strike-out application.[5]An application was made on behalf of two of the Respondents by Ms Reid, of Counsel, for the introduction of the agreed note of Counsel as to what was said by the Chairman on behalf of the Tribunal in what he described as an "extempore Decision with Reasons". Objection has been taken to the adduction of this document.[6]The basis of Ms Reid's application is that, according to one paragraph, a nuance is placed upon the Tribunal's reasoning as it emerges in the Extended Reasons as registered. Mr Morris contends that the EAT should pay attention to the Order of the Tribunal and to its Extended Reasons as being the appropriate record of the proceedings. We note that the Chairman appears to have had this note before preparing the written Reasons, for he says in a letter directed to the Registrar, dated 21 December 2004:
"I know that Counsel kept an excellent record of the proceedings."
[7]Since the issue is the subject of a dispute, we consider that Mr Morris' approach is correct. It may often be that words are said in an immediate judgment which committed into written reasons slightly change. The practice of an Employment Tribunal involves consideration by all three of the members before written reasons are registered. When immediate reasons are given, different shades are put upon an immediate on the one hand and written reasons on the other after further reflection. So long as the substance, and of course the executive part of the decision, remains the same, no problem will arise. We consider that Mr Morris is correct: since we have the advantage, by statute, of the Extended Reasons of the Tribunal, those are what we will rely on and we will not allow this note to be relied upon.[8]As to the other agreed note of Counsel, which relates to the apology, no resistance is made by Mr Morris to its adduction, since the Chairman accepts that it is accurate.[9]As a matter of practical litigation, what we say in this judgment is less important then the order we have made. As a result of careful case management by the EAT, this case is being heard today ahead of an Employment Tribunal hearing of 20 days due to start on 17 January 2005. As the parties know before they asked for a reasoned judgment, we have decided to dismiss the appeals and the case will go ahead. There is also an appeal by The Home Office against one aspect of a costs order made by the Employment Tribunal against Mrs Morris. In the circumstances we hope a short judgment will suffice.[10]In accordance with the directions of the President and other judges, this case has come on for hearing, listed as full day, on the appeals brought by the Respondents who are represented today by the three Counsel, and who are four of the Respondents in the proceedings below, as we will continue to call them. Judgment and summary reasons[11]In order to give effect to a tribunal hearing listed for 20 days, starting on Monday, we will dismiss the appeal. After hearing submissions by all of the parties as to how we manage our time now, as between giving full reasoned judgment or continuing to hear the costs appeal which is brought by the Home Office only, we compromise. We will hear the costs point but while all parties are here we will make it clear that in dismissing the appeal we do not in any way diminish the force of the judgment of the Employment Tribunal and its condign condemnation of the disgraceful and unreasonable conduct of Mrs Morris. Notwithstanding that, we uphold its Decision.[12]Mr Morris' written assertion is that the Claimant's conduct since these events in June last year has been entirely acceptable. From what has been told to us during the course of our hearing in response to that assertion, a different view may be taken of that. We have been taken to correspondence directed to the Registrar of the EAT and her officers, including what Mr Morris describes as a campaign to ensure that the case on appeal was brought forward so as to ensure that there was no violation of the fixture at the Employment Tribunal next week. He indicated that both of them were coming to the EAT and would campaign outside for justice. We have heard that the Morrises did come in order to promote the campaign to have their case heard before Christmas, and that officers of the EAT called the police who came. In fact the police served the correspondence which the Morrises sought to give directly to the President, but did not indicate that a breach of the peace had taken place.[13]It may be that if we were to conclude that we had our own discretion to exercise, that might be a matter which would affect us. We will say no more about that. We do, however, indicate that that conduct is itself unacceptable.[14]The breakdown of Mrs Morris during the course of our hearing is also something that we are most concerned about. Mr and Mrs Morris, during the course of the next four weeks, will be under a great deal of stress. Mr Morris has presented the arguments to us in a measured and concise way, which we commend. The only way in which justice will be done to all nine of the parties in this case next week is for there to be a continuation of the same measured, level, sensible approach to the proceedings. There must be no contact by Mr and Mrs Morris with any of the other witnesses for the Respondents, or with the parties who are represented by someone else, either professionally or by way of family. Mrs Morris must ensure that she takes her medication. Mr Morris, who has said he cannot guarantee it, must do all he can to ensure that that is the position and that she is fit to conduct these proceedings. The proceedings must be conducted temperately and we will ask the Chairman who has conduct of this case next week to make it clear to all of the parties that they should give their evidence without fear, and not feeling under any threat. They should give their evidence as to the truth of what they know. In that way we are sure that justice can be done, but it will require restraint by Mrs Morris of her conduct, and by Mr and Mrs Morris in the approaches that they make: both proper approaches to representatives of the other parties and proper approaches to the Employment Tribunal if representations need to be made about preliminary issues and so on. Reserved reasons[15]Turning to the appeal, following a directions hearing, the entire time for the hearing of the Claimant's claims was taken up by strike-out applications made by seven of the eight Respondents against whom proceedings had been lodged by Mrs Morris. This involved four days in open Tribunal and a day in Chambers. Four of the Respondents were represented by Counsel Mr Adam Tolley, Ms Elaine Banton and Miss L Reid, and the other three were represented by a son, a friend or appeared in person. The hearing had commenced with a reading day before the open proceedings. The case was heard by a London (South) Employment Tribunal, Chairman Mr Hall-Smith and members, registered with Extended Reasons on 16 August 2004. The Tribunal refused the applications to strike out the Claimant's claims, but ordered costs against her by way of a detailed assignment. This was not the first time costs had been awarded against Mrs Morris. We are told costs schedules add up to something over £20,000.[16]The application to strike out arose from the following description given by the Tribunal:
"6. At the Directions Hearing on 3 June 2004 the third and seventh named Respondents had already made applications to strike out the Applicant's Originating Application, and' the Chairman was hearing such applications. During the course of the hearing the Applicant had made a number of unwarranted outbursts, and the Chairman had called a temporary halt to the proceedings. It was the contention of the Respondents present at the hearing that the Applicant had threatened the fifth named Respondent, Mrs Hamezia with her walking stick and that she had only been prevented from striking Mrs Hamezia with her stick by both her husband and Counsel, who had escorted her from the Tribunal room."
[17]It generally accepted the Respondent's evidence:
"10. On the factual issue relating to the Applicant's conduct at the hearing on 3 June 2004, the Tribunal accepted the evidence of the Respondents who gave evidence. The Tribunal did not find the Applicant a reliable witness, and it was clear to the Tribunal that the Applicant, contrary to her denial, was able to raise her stick. The Tribunal found the Applicant's explanation that she had been provoked by Mrs Hamezia in the Tribunal room and who had allegedly referred to the Applicant's mother as a "bitch" to be wholly unconvincing. We find that the Applicant did raise her stick at the fifth named Respondent, Mrs Hamezia and that she uttered the words "
I will break your head", causing Mrs Hamezia to become alarmed and shaken. We are prepared to accept the Applicant's explanation that because of her early departure from her home in Eastbourne to reach the Tribunal by 10am, she had forgotten to take her medication, which had a calming effect on her. 11. In addition to the Applicant's conduct at the Directions Hearing on 3 June 2004, the Respondents .also complained about the nature of the correspondence which had been generated by both the Applicant and her husband during 2004. 12. The correspondence involved is a matter of record and is very largely exhibited to the written submissions of the parties in support of their applications to strike out. The Tribunal considered that the tone of such correspondence and the comments of the Applicant contained in it were vituperative, in come instances potentially defamatory and on any view were disgraceful. The Tribunal considered that the correspondence from the Applicant went far beyond what should be reasonably tolerated in the course of a dispute between parties which had become the subject of Court or Tribunal proceedings. The sample passages referred to in these Extended Reasons illustrate the flavour of the correspondence emanating from the Applicant.[18]The Tribunal was very concerned about the effect on witnesses for it said as follows:
"13. The Tribunal was particularly concerned about the Applicant's approach towards the Respondent's proposed witnesses."
The Tribunal noted that there was a considerable volume of intemperate correspondence emanating from the Claimant and her husband. It noted that throughout the Claimant had been represented by three different firms of solicitors, but that some of the correspondence was generated at a time when she was without legal representation. On 3 June 2004 the Claimant was represented by Counsel and solicitor who were in the Tribunal room with the Claimant. The Tribunal's conclusion about the witnesses and the individuals was as follows:
"30. The Tribunal concluded that the comments made by the Applicant about witnesses and individuals connected with the case were on any view disgraceful. Parties to Tribunal proceedings, their witnesses and representatives should never be placed in the position of being at the receiving end of the sort of correspondence and communications sent by and on behalf of the Applicant. In any legal proceedings, whether Tribunal proceedings or otherwise, all parties are entitled to be treated courteously. Applicants who bring proceedings may well be unhappy if the proceedings are defended, but it is a matter for the Tribunal to determine the merits, whether Respondents are large organisations such as The Home Office or individual respondents. No Respondent deserved to receive the type of correspondence generated during the course, so far, of these proceedings….31….It was conduct which the Tribunal should not tolerate."
[19]It found on the facts that the Claimant shook her stick at Mrs Hamezia and that as a result she was genuinely alarmed for her safety. The Claimant was escorted by her representatives from the room. Of that the Tribunal said:
"Again, no party to proceedings should ever be subject to such intimidating conduct by anyone connected to the proceedings."
[20]The Tribunal found that the conduct of the Claimant fell squarely within 2001 Rules of Procedure, Rule 25 (2) (d):
"….(2) A Tribunal may- (d) subject to paragraph (3), at any stage in the proceedings, order to be struck out any Originating Application or Notice of Appearance on the grounds of the manner in which the proceedings had been conducted by or on behalf of the applicant or, as the case may be, respondent has been scandalous, unreasonable or vexatious;"
The Tribunal considered whether or not a fair trial of the issues was still possible. It noted that the Claimant had apologised. The Tribunal having examined the Claimant carefully about the sincerity of such apology, noted that this was an important factor which should be taken into account. The Tribunal was alive to the problem that there may be fear in the minds of witnesses, for it said this:
"One of the Respondents told the Tribunal that she was not able to tell her witness the full extent of what had been alleged in documents sent to her, and having seen the document concerned, we could appreciate her reticence. The Tribunal was informed that witnesses were now reluctant to come and attend a Tribunal Haring and that they required Witness Summonses."
[21]Against that, the Tribunal balanced its experience that it is not uncommon for witnesses to be reluctant to attend hearings and there are many ways in which Tribunals are experienced in dealing with such problems. It also noted that the Claimant had been in breach of Tribunal directions and her behaviour had caused costs to mount. Its final conclusion was as follows: "39. On balance, deplorable as the Applicant's conduct of the proceedings had been, the Tribunal did not conclude that such conduct had yet crossed the threshold into circumstances or reached a stage where a fair trial of the issues was not possible. The Applicant is required to abide by the rules, and it is very unlikely that any repetition of her conduct would be tolerated. Any concerns by her can be addressed in polite language to the Tribunal to enable a Chairman to deal with them. If the Applicant should have any concerns, the proper way to proceed is to telephone the Tribunal and a caseworker will deal with the matter by referring it to a Tribunal Chairman who will then consider such steps as he or she should consider appropriate. But the type of correspondence which has taken place cannot be and must not be repeated.[22]Notwithstanding the unsuccessful five day proceedings brought by seven of the Respondents, the Tribunal awarded costs in favour of the represented Respondents. This is because the Respondents had made well founded applications and that the Claimant's conduct had been unreasonable, such conduct being calculated to deter witnesses from giving evidence. There is no appeal against that order.[23]Against the refusal to strike out these appeals are launched. The legal principles[24]In this case the relevant principles emerge from the following authorities. In the judgment of Chadwick LJ in Arrow Nominees Ltd v Blackledge [2002] 2 BCLC 167 at 183 there appears:
"…but where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgement in favour of a litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the Court as to render further proceedings unsatisfactory and to prevent the Court from doing justice, the Court is entitled, indeed I would hold bound, to refuse to allow that is going to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the Court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the Court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke."
[25]The importance of administration of justice was emphasised by Pill LJ in Terry v Hoyer (UK) Ltd (2001) EWCA Civ 678 at paragraphs 16 and 32:
"16. I make the general observation that I do not accept that conduct is incapable of being scandalous or frivolous such as to justify a strike-out within the meaning of the rules only if there cannot eventually be a fair trial notwithstanding that conduct. There is conduct which no court or tribunal, with its necessary concern for the proper administration of justice, could tolerate. Courts and tribunals must be concerned to do justice. They must, in doing that, have regard to the interests of litigants in general, to the proper use of court time and to the need to ensure respect for courts and tribunals in the community. … 32. I bear in mind that the appellant is a lay person, that the timescale in this case was short in that the strike-out occurred without any prolonged delays having occurred, and also that Mr Hammond had, before the strike-out, offered to give his assistance. The Tribunal was obliged to consider the circumstances as a whole. There is every indication that they did so. In my judgment they were entitled to come to the conclusion on the basis of the appellant's conduct, and his conduct not only towards the court but towards his opponents, that this was a case in which, by reason of his attitude to the court orders and his conduct generally, they were entitled to conclude that the originating application should, under both paragraphs of the rule, be struck out. As to the existence of apologies the judgment of Arden LJ provides useful assistance: "36. A key finding by the Tribunal which is not challenged is that by his letter dated 22 nd February 1999 Mr Terry had made it clear he had no intention of complying with the Tribunal's order dated 18 th January 1999. As I say, that finding is not challenged. Nor is there any evidence that the position changed. I would observe that the expression of any regret, contrition, apology or commitment to conduct the proceedings properly in the future are all conspicuous by their absence before the Tribunal, the Employment Appeal Tribunal and this court. No application has been made to put in evidence showing a complete change of heart by Mr Terry."
The Applicant's submissions[26]Essentially all three Counsel made submissions based upon Terry v Hoyer . The single proposition is that the Tribunal was addressed on this authority, but failed to decide whether the conduct of the Claimant was so abusive that the Tribunal should not put up with it, and should strike out the claims, irrespective of whether a fair trial was possible. Further, it was contended that the impact on witnesses is immeasurable. Any guidance or assurance given by a Chairman that witnesses should give their evidence fearlessly could not be guaranteed to be effective. The Claimant's submissions[27]It was contended on behalf of the Claimant that an apology has been given. She had been condemned in costs prior to this hearing, and at the hearing, for her unreasonable conduct which was not the subject of appeal. It was in the public interest that claims of race discrimination should be heard unless it was entirely correct to strike them out. Conclusions[28]We agree that the Tribunal did not in terms make a judgment under the principle in Terry v Hoyer . However, that must have been its conclusion. It was looking at the conduct which it saw before it. It had fully in mind the nature of the conduct. It was in no doubt that a four week hearing before it could go ahead, notwithstanding this conduct. It noted that a Tribunal should not have to tolerate this kind of conduct. Nevertheless, it was prepared to continue to hear the Claimant's claims for a fair trial was possible. The Tribunal must have formed the view that, however bad the Claimant's conduct, it did not justify the striking out of the claims. As it noted, a fair was still possible.[29]As to that judgment itself i.e. that a fair trial was possible, it was open to the Tribunal to decide the way it did. A Tribunal of course has experience in dealing with such situations and could take steps to remedy any harm the Claimant might superficially have done. It is important to note that this Tribunal was prepared to order the continuance of the four week hearing, confident that justice could be done.[30]The Tribunal was also correct to pay attention to the apology the Claimant gave. Although the substance of the apology was hotly contested, the Tribunal made a finding that the apology was genuine after carefully testing that proposition. As is clear from Terry v Hoyer , the existence of an apology is a relevant factor.[31]The Tribunal also considered the claim that the Claimant had not been taking her medication on the day. It has to be said that there was at least some material by way of medical evidence as to this and this was a factor which the Tribunal was entitled, on the urging of Mrs Morris, to take into account.[32]For all those reasons the decision of the Tribunal to refuse the strike out applications cannot be said to have been an error of law. The appeal on costs[33]A very specific application is made by Mr Tolley instructed by the Treasury Solicitor for the Home Office in respect of the order for costs in its favour . This relates to a separate Notice of Appeal:
"The Appellant appeals from the decision of the Employment Tribunal sitting at London South dated 10 November 2004 that an order for costs made against the Respondent on 25 June 2004 was limited…"
The Notice of Appeal against the substantive decision was lodged on 10 September 2004. The deadline (42 days under the EAT Rules) was 28 September 2004. Following an inquiry by Mrs Morris as to the nature of the costs award the Tribunal said on 9 September 2004:
"The paragraph 44 of the Extended Reasons provides that the costs order is restricted to the costs incurred by the attendance of the parties and their representatives on those days referred to in such paragraph."
[34]A further reply was then directed to the Treasury Solicitor on its making additional enquiries:
"Accordingly, the Tribunal concluded that costs order against the Applicant/Claimant should be limited to the cost of attendance rather then the preparation time because otherwise she would be liable for costs and preparation of the full merits hearing which did not proceed as intended through lack of available Tribunal time…."
[35]The Treasury Solicitor was not satisfied with that response and caused another question to be raised to which the Tribunal responded on 16 November 2004:
"The Chairman Mr Hall-Smith … considers that the Tribunal letter to you of 7 October 2004 … fully sets out the position regarding the Tribunal costs order, he repeats that the costs DID NOT include preparation time but was limited to the costs of the attendance at the Tribunal hearing. The Chairman is not prepared to enter into any further correspondence on such issue."
[36]The short conclusion we draw based on Mr Morris's submission is that the appeal on the costs order is not against a "decision" dated 10 November 2004. No decision was made on that date. Nor was a decision made on 7 October 2004, for that too was a reiteration. In any event, no argument was raised with us about this letter of 7 October, for the Notice of Appeal was accepted to be out of time to appeal that. The Treasury Solicitor should have appealed against the costs order while at the same time seeking clarification, if that were on its mind. It is not open to a putative Appellant to re-start the clock by writing a letter which results in the Chairman reiterating the contents of a paragraph of Extended Reasons. We therefore hold that the appeal is out of time. It is not necessary for us to consider it. The appeals are dismissed.[37]We would like very much to thank all four of the representatives today.[38]On Mr Morris's application for costs, an application should be made within 14 days of the written reserved reasons.