DR L LIU (CLAIMANT) v THE ASSOCIATION OF UNIVERSITY TEACHERS [2007] UKEAT 0072_05_0702

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0072_05_0702Case No Appeal No. UKEAT/0072/05Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
DR L LIU (CLAIMANT)APPELLANTTHE ASSOCIATION OF UNIVERSITY TEACHERSRESPONDENT
Before
Lady SmithDate 7 February 2007
[1]APPEARANCES For the Appellant Dr L Liu, the Appellant in Person For the Respondent Ms A Jones, Solicitor Messrs Maclay Murray & Spens Solicitors 3 Genfinlas Street Edinburgh EH3 6AQ SUMMARY Circumstances in which a claimant who had not appeared at the full hearing of his appeal before the Employment Appeal Tribunal sought and was granted review of order dismissing his appeal. Respondents' application for expenses granted in part on grounds of unreasonable conduct by the claimant. THE HONOURABLE LADY SMITH Introduction This is the third judgment by this Tribunal in the appellant's appeal. For the history of his case, I would refer firstly to the two earlier judgments dated 9 March and 10 August 2006 and secondly to there having been a further hearing on 6 October 2006 the outcome of which was that the outstanding review application was further adjourned, the respondents' expenses applications were adjourned, the respondents were ordered to lodge and intimate to the appellant a schedule setting out the details of the expenses claimed by them and the appellant was ordered to lodge and intimate to the respondents any documents relating to his means on which he proposed to rely in relation to the expenses application. Further, in respect that the appellant made, at that hearing, a motion for expenses against the respondents, it was not ruled on but reserved.[2]I propose to refer to parties as claimant and respondents.[3]As may be deduced from the above history, there came before me at this hearing the claimant's application for a review of the order of 9 March 2006 dismissing his appeal together with the respondents' applications for order for expenses in connection with the two abortive hearings which the claimant did not attend, namely those on 9 March and 10 August 2006. Also, the claimant made, at the outset a motion that I should "recuse" myself and, at the end of the hearing, a motion for the expenses of the hearing.[4]The claimant represented himself and the respondents were represented by Ms Jones, solicitor. Motion for 'Recusal' 5. Recusal or declinature of jurisdiction was sought by the claimant on the ground that he had sent a complaint to the Lord President regarding me. He referred to a letter he had written dated 10 October 2006, which was in the following terms:
"Dear Lord President According to the Judicial Complaints (Tribunals) Rules 2006, I am forwarding a complaint against the President of Employment Appeal Tribunal, the Honourable Lady Smith. I look forward to hearing from you."
[6]No other document in respect of that stated complaint had been lodged by the claimant. I have no knowledge of any such complaint and am unaware of its content. Insofar as anything could be gleaned from what was said by Dr Liu, it would appear to relate to him taking issue with the orders pronounced in this appeal thus far. I note the reference to the Judicial Complaints (Tribunals) Rules 2006. Those rules do not provide for or require the Lord President to investigate any complaint relating to the judge nominated by him to sit in this Tribunal under and in terms of s.22(1)(b) of the Employment Tribunals Act 1996. Further, they do not appear to require the investigation, in respect of those judges to whom they do apply, of complaints regarding judicial decisions in the course of a case.[7]The claimant relied, in support of his motion on two authorities: Breeze Benton Solicitors (A Partnership) v Weddell UKEAT/0873/03 and Deman v Association of University Teachers & Ors UKEAT/0666/05.[8]Ms Jones opposed the motion. She submitted that there was no rule of law that required that I decline jurisdiction. Decision on Motion for 'Recusal' 9. Having retired to consider the matter, I decided that I should not decline jurisdiction. It seemed to me that I required to bear in mind the test for bias set out by Lord Hope of Craighead in the case of Porter v Magill 2002 2AC 357 namely that the relevant question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias.[10]The relevant facts in this case were as follows. Firstly, that a complaint, the text of which was not disclosed but was probably to the effect that the claimant took issue with orders previously pronounced in this case, had been sent to the Lord President of the Court of Session. Secondly, that the authorities relied on by the claimant are not to the effect that a judge against whom a complaint has been lodged by a litigant always requires to decline jurisdiction. That is certainly what happened in Deman but that was on the basis that the judge in question took the view that:
" …given the very long procedural history of this case, if there is a possibility that the matter can be handled by another judge, it ought to be taken rather than any distraction be introduced into the merits of Mr Deman's case by consideration of whether or not he is having a fair hearing."( paragraph 12) and "
It seems to me that no harm will be done by my standing aside from this case." (paragraph 14).[11]He also took account of the fact that the only loser by his vacating proceedings that day was Mr Deman himself.[12]Also, although a written complaint about the Tribunal Chairman had been sent to the Lord Chancellor's department in the case of Breeze Benton , it was not focussed on the decisions made by the Tribunal which he chaired. It concerned, rather, allegations of improper conduct comprising the making of offensive and disparaging remarks and behaving rudely and in a bombastic fashion to a principal of one of the parties and also behaving so brusquely towards one of that party's witnesses as to reduce her to tears. The precise nature of those allegations was known to the Chairman. It was in those particular circumstances that the Employment Appeal Tribunal took into account the making of the complaint as a relevant factor when considering the Porter v Magill test in connection with a submission that that Chairman should not have sat in a subsequent case in which the same party was respondent . In short, contrary to what was suggested by the claimant, it is not authority for the proposition that the mere fact that a formal complaint has been made about a judge requires that he or she decline jurisdiction. Indeed, were that the case, it could have undesirable repercussions by opening the door to use of the lodging of such a complaint as a tactical device to prevent a particular judge hearing a case in circumstances where the reason the complaining party would not choose to go before that judge has in fact nothing to do with a genuine fear of bias.[13]It is plain from what was said in Porter v Magill (and subsequently, when approving what was said in that case, in Lawal v Northern Spirit Ltd [2003] IRLR 538 ) that the question of whether or not jurisdiction ought to be declined will depend on the particular facts and circumstances of the individual case. I was satisfied that the facts and circumstances of this case were not such that I required to decline jurisdiction and I, accordingly, refused the claimant's motion. The Review[14]Under reference to the fact that no medical certificate was sent to this Tribunal on the day of the hearing, 9 March, the claimant explained that he attended at his General Practitioner early that morning. He was ill. He asked to see a doctor but the receptionist told him that the clinic was busy. He went back later and told the receptionist that he needed information for the Tribunal. He asked again to see a doctor. He went to the waiting room and was subsequently seen. He asked for a medical certificate and was either told he would have to go back in the afternoon to collect it or it was sent to him in the post. He could not remember which was correct. He obtained a medical certificate. He thought that he had telephoned Mr Newton at the Employment Appeal Tribunal to find out what had happened to his case but did not seem to be clear whether he had done so on the 9 th or the 10 th . In any event, he heard from Mr Newton on the 10 th that his appeal had been dismissed. He then faxed the medical certificate to the Employment Appeal Tribunal.[15]The claimant submitted that it was in the interests of justice that his review be granted. He had not chosen to be ill. He could not have appeared at the hearing; he would not have been able to cope with presenting his case or answering questions. The respondents would have taken advantage as soon as they realised that he was a sick man.[16]For the respondents. Ms Jones stated that if the whole circumstances were simply that the claimant had been unwell, sympathy could be extended to him. However, he had done himself no favours. He had never properly lodged the present application for review, there had been no communication by him with her firm regarding bundles and authorities prior to 9 March, he had adopted a cavalier approach to the August hearing in, again, lodging no documents and assuming that he would be successful in securing the adjournment that he wanted and regarding what had happened on 9 March, detail was lacking. The medical certificate said very little, it was not clear that the doctor had been advised what it was that the claimant would have been appearing at (he was not, for instance, facing the stress and strain of a full tribunal hearing with evidence) and no satisfactory explanation had been given as to why the certificate was not faxed through on 9 March. The application should, in all the circumstances, be refused.[17]Regarding the reference to the claimant's failure properly to lodge his application for review, the position was that he applied for review two days late and applied for an extension of time in which to seek review on the grounds that ill health had prevented him from applying in time. The application was granted. Decision on Review Application[18]On the information and certification provided, I am satisfied that I have to proceed on the following basis. Firstly that the claimant, who lives in Glasgow, claims that he was ill on 9 March 2006 to the extent that he was unable to attend the hearing of his appeal in Edinburgh. Secondly, the fact and nature of his illness was not certified to this Tribunal that day. Thirdly, the only information provided to the Tribunal on 9 March was that which was contained in a fax from the claimant's wife which read:
"On behalf of my husband, Dr Lihe Liu, I am writing to inform the tribunal that Dr Liu cannot conduct the hearing today due to illness. Dr Liu would like to apply for an adjournment of the hearing. Thank you very much for your assistance in this matter."
[19]Fourthly, the fact of the claimant's illness on 9 March was certified by Dr D McGhee by a signed letter addressed 'To Whom it May Concern' dated 9 March which read:
"I write to confirm that this man is unfit to conduct a tribunal case at present because of diarrhoea and stomach pain."
[20]Fifthly, that letter was faxed to this Tribunal on 10 March 2006. Sixthly, it is evident from the date of the letter and the account given by the claimant that he did attend at his GP's surgery on 9 March 2006 to obtain a medical certificate.[21]Seventhly, that the nature of the illness from which the claimant was evidently suffering on 9 March was such as to disable him from travelling to Edinburgh and from being able properly to present his appeal.[22]The relevant rule is rule 33(1) of the Employment Appeal Tribunal Rules 1993 (as amended) which provides:
"The Appeal Tribunal may, either of its own motion or on application, review any order made by it and may, on such review, revoke or vary that order on the grounds that – ………… ………… (c) the interests of justice require such a review."
[23]I fully appreciate the respondents' sense of frustration at the lack of progress in this case and at the claimant's past failures to comply with orders, such as those requiring him to co-operate with them in compiling and agreeing bundles and a list of authorities. His track record in that regard is not good. He does not appear to have appreciated, thus far, the responsibility that he has, this being his appeal, to see to it that documents are prepared and lodged timeously in advance of hearings.[24]However, the appeal was dismissed on account of the claimant's non-appearance. The reason for his non-appearance was that he was ill. His failure regarding documents and the cavalier attitude that he demonstrated subsequently, do not change that fact. I am satisfied that, given the claimant's illness, subsequently certified although not certified at the time of the hearing, it would be appropriate to grant the application for review of the order dismissing his appeal. That order will, accordingly, be revoked and a full hearing of his appeal will now be fixed. A fresh order directing that the appeal (which, for the avoidance of doubt, is the appeal set out in the claimant's notice of appeal dated 12 August 2005 against an order of the Employment Tribunal sitting at Glasgow dated 1 July 2005) be set down for a full hearing will be pronounced and the claimant's attention is drawn to his obligations as set out in that order. In particular, his attention is drawn to what will be paragraphs 8, 10, 11 and 12 of that order and to the time scales specified in those paragraphs. Expenses[25]The respondents had two expenses applications. One was in respect of the hearing of 9 March 2006 and the other was in respect of the hearing set down for 10 August 2006, also adjourned when the claimant did not appear. As regards the August hearing, I would refer to my judgment of that date, in particular to paragraph 14 where I explain that it was with considerable hesitation that I granted the adjournment sought and set out certain criticisms of the claimant's approach to his responsibilities in relation to the hearing.[26]Generally, Ms Jones submitted that the claimant had, thus far, been conducting his appeal in an unreasonable manner. She submitted that in addition to the provision of Rule 34(1) of the Employment Appeal Tribunal Rules , subparagraphs (a) and (c) of Rule 34A (2) also applied. Regarding 9 March, Ms Jones relied on the submissions that she had made in support of her opposition to the application for review and indicated that she would, in any event, have been making an application for expenses at that hearing on account of the claimant's failure to co-operate in agreeing bundles and a list of authorities. Her firm's work in progress relating to that hearing was in excess of the £2,000 sought, as supported by the print outs that had been lodged. Regarding the August hearing, she referred to the e mail exchange detailed in my judgment of that date and the claimant's attitude to compliance with dates and orders, again, as there discussed. Again, the work in progress was in excess of the £2000 sought.[27]At the outset in response, the claimant indicated that he was not now asking for his means to be taken into account.[28]He did not take issue with the figures brought out in the work in progress printouts nor did he submit that £2,000 would not be a reasonable sum to award in respect of each hearing if an award was to be made.[29]The claimant relied on his illness as a reason for refusing the expenses application for the March hearing. His medical condition was genuine and was tendered to the Tribunal.[30]Regarding the August hearing the claimant again referred to his illness, as certified by Dr McGhee and to that doctor having since written to this Tribunal explaining that an unsigned report was sent at first to facilitate information being sent to the Tribunal as soon as possible in circumstances where the claimant was under extreme pressure and excessively anxious. He also referred to his having applied for an adjournment of the hearing.[31]The claimant made an application for an award of expenses against the respondents in respect of the hearing that had taken place in October. The reason for his doing so was that the respondents should, he said, have produced a schedule showing their expenses prior thereto. He did not, however, indicate that he had suffered any financial loss nor did he indicate any hours that he had spent in relation to doing the necessary work for the hearing. Decisions on Expenses[32]The relevant rules provide:
"34A(1) Where it appears to the Appeal Tribunal that any proceedings brought by the paying party were unnecessary, improper, vexatious or misconceived or that there has been unreasonable delay or other unreasonable conduct in the bringing or conducting of proceedings by the paying party, the Appeal Tribunal may make a costs order against the paying party. (2) The Appeal Tribunal may in particular make a costs order against the paying party when- (a) he has not complied with a direction of the Appeal Tribunal ; …………….. (c) he has caused an adjournment of proceedings. (3) Nothing in paragraph (2) shall restrict the Appeal Tribunal's discretion to award costs under paragraph (1)."
[33]Rule 34B empowers this Tribunal to specify the sum which the paying party must pay. It also empowers it to have regard to the paying party's ability to pay but it does not require it to do so.[34]Firstly, as regards the application in respect of the 9 March hearing, it seems to me that it would not be appropriate to make the award sought. The relevant fact is that the claimant did not appear due to illness. I note that the respondents would have sought an order for expenses in respect of his failure to agree bundles but it is not possible to say what the outcome of that application would have been.[35]The August hearing falls, however, to be regarded in a different light. Notwithstanding his illness on the day of the hearing, it seems evident from the course of events detailed in paragraphs 6 and 7 of my judgment of 10 August 2006, firstly that the claimant did not intend to attend that hearing and simply assumed that he would get an adjournment if he asked for it not on grounds of illness but on the basis that his chosen but unidentified representative would not be available and secondly that the relevant illness on that date was an ongoing condition rather than, as appeared to be the case on 9 March, a "one-off" event of incapacity. That being so, he could, on the face of it, have taken steps much sooner than he did to seek the ill health adjournment that was eventually sought at 16.49 on 9 August by which time the respondents' preparation expenses had been incurred and the need to appear on 10 August 2006 could not be avoided. No explanation was advanced for his failure to obtain a medical certificate earlier than that day. Once again, the claimant had clearly left everything to the last minute. I agree with the respondents' submissions that this presents a picture of unreasonable conduct on his part and I am persuaded that I should exercise the power available to make an award of expenses against the claimant in respect of that hearing. Having perused the work in progress printout lodged by the respondents, which brings out a total figure of £2930.50 excluding VAT, it seems to me that £1,500 would be a fair sum to award and I will pronounce an order in that amount.[36]Regarding the claimant's motion for expenses, in terms of Rule 34D, the amount of expenses which can be allowed to a party litigant are restricted to the amount of any financial loss proved or an amount per hour that the Tribunal considers was reasonably spent on doing the relevant work. The claimant made, however, as I have indicated, no submission that he had suffered any financial loss nor did he indicate any number of hours work which he relied on as having been spent in relation to the hearing. In the absence of any such submission or indication, it would not be possible to allow him any award of expenses. In any event, I am not satisfied that such an award would be justified. There is no rule that requires a party applying for an award of expenses to lodge a schedule in advance and even although there is provision in paragraph 19.3 of the Employment Appeal Tribunal Practice Directions 2004 for a party to do so, it is but one way of showing how costs have been incurred. On both occasions prior to October 2006 when the respondents had sought orders for expenses, the motions had been made under reference to work in progress printouts which Ms Jones had in her files (which were with her at the hearings), as is evident from the judgments which were available to the claimant long before October 2006. He cannot have been in any doubt as to the basis on which the amounts sought had been arrived at.[37]I will, accordingly, pronounce an order refusing the claimant's application for an order for expenses in relation to the hearing on 6 October 2006.