RULE 3(10) APPLICATION - ONLY v NORTH GLAMORGAN NHS TRUST [2008] UKEAT 1382_07_1203

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 1382_07_1203Case No Appeal No. UKEATPA/1382/07/CEA UKEATPA/1386/07/CEA UKEATPA/1387/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
RULE 3(10) APPLICATION - ONLYAPPELLANTNORTH GLAMORGAN NHS TRUSTRESPONDENT
Before
His Honour Judge McMullenDate 12 March 2008
[1]APPEARANCES For the Appellant MR A EZSIAS (The Appellant in Person) SUMMARY Practice and Procedure – Appellate jurisdiction/reasons/Burns-Barke Bias There is no practical utility in hearing interim appeals against pre-hearing orders and bias when the EAT has already rejected or stayed 10, and a full hearing at the Employment Tribunal is under way at day 25 of 35. Allegations of bias should be considered at the end of the hearing R v. Abdroikof [2007] 1 WLR 2679 HL. One appeal rejected under Rule 3(10), two others adjourned, all 7 others stayed until 42 days after the Judgment. HIS HONOUR JUDGE McMULLEN QC These are interim applications for Notices of Appeal relating to orders made or not made upon applications by Mr Ezsias who I will call the Claimant in proceedings against North Glamorgan and NHS Trust who I will call the Respondent. In these proceedings the Claimant represents himself. He told me he is due to be called to the Bar tomorrow having made excellent use of the time while he was away from surgical practice to so qualify.[2]I pre-read a very substantial number of the voluminous papers in this case and of course refreshed my memory of North Glamorgan NHS Trust v Ezsias [2007] IRLR 557 in which the Court of Appeal dismissed an appeal by the Respondent from the judgment of the EAT, Elias P and members, which had reversed the judgment of an Employment Judge in Cardiff on the ground that there was apparent bias and that her decision was perverse. The Court of Appeal remitted the case and steps were taken to get the case back on the rails from which it had departed on its excursion to the EAT and the Court of Appeal.[3]A number of applications was made by the Claimant and steps were taken including, so far as is relevant to my proceedings, at a CMD held by Employment Judge Philip Davis on 12 September 2007 for which reasons were given on 24 September 2007 in a letter.[4]The conduct of the CMD is one of the matters the subject of the Notices of Appeal. In order to understand the complexity of the procedural steps it is simply necessary to record that the Claimant has at least 23 Notices of Appeal before the EAT. Seven of them were heard under rule 3(10) by HHJ Reid QC on 5 December 2007 when all the applications were dismissed and effectively those appeals are over. An application made to review those judgments was refused on 17 December 2007.[5]Meanwhile, three other cases arising out of interim procedures were dealt with under rule 3(7) by HHJ Richardson who formed the view that none had a reasonable prospect of success and thus the Claimant today appears to advance argument under rule 3(10) at an oral hearing. Another seven cases have been subject to the rule 3(7) procedure by, I think, HHJ Peter Clark and at the moment the EAT has no knowledge of whether they are taken further by the Claimant. Also during this time three further Notices of Appeal were sifted by HHJ Peter Clark. They were stayed pending reasons sought from the Employment Judge. In addition there is one other Notice of Appeal which has not been properly instituted. So there are 13 appeals running, some alleging bias. However what has happened of crucial importance is that the hearing remitted by the Court of Appeal started on 17 December 2007 and has run under the Chairmanship of Employment Judge Philip Davis for about 25 days and is due to resume on 17 April 2008 for a further 10.[6]Sadly the transcript ordered by Judge Reid three months ago has not been provided so I have no insight into the reasons which he delivered orally on the day. In respect of the three cases handled by Judge Clark, no reasons were given for decisions made by the Employment Judge and so those have been sought by Judge Clark under rule 30 of the Employment Tribunal Rules .[7]That leaves the three cases I have today in respect of which Judge Richardson gave his adverse opinions. Only one has been the subject of any argument and that is what is known as appeal 1386/07/CEA. It is essentially to challenge the failure by the Employment Judge to give reasons for a decision he has made. I use the term decision without technicality to include both a judgment, an order, a CMD decision and any expression of a view, for under section 21 of the Employment Tribunals Act 1996, unamended to take account of the 2004 Rules, the EAT may hear appeals from a decision and also from any matter arising in proceedings before a Tribunal. There is a wide scope provided a question of law is identified.[8]The grievance expressed by the Claimant in the first Notice of Appeal which I am dealing with is that reasons were not given. When I was told today that the proceedings in the Employment Tribunal were on foot, it occurred to me that there was no utility in continuing with today's hearing. I had in mind the approval by the Court of Appeal of a similar course I took in Edem v Ajilon . UKEAT/1606/06 for the following reasons. The Tribunal is under way, those criticisms which the Claimant has of Employment Judge Philip Davis on the grounds of apparent bias or, as he put it, misgivings, may well be available to the Claimant at the end of the hearing. All of these interim matters have either been cured or passed as a result of the hearing now started. There is little point in having an appeal on an interim matter once the hearing is as deeply entrenched as this one is. I accept that if there were bias these proceedings would be set aside but that decision is a long way off. The Claimant may win, in which case there would be no utility in raising complaints of bias since it would be the order which would be attacked and not the reasons or the way in which the Tribunal went about them. If he loses the case he could raise questions of law and the issues which he has already raised on bias. Now is not the right time, as Lord Carswell said in R v. Abdroikof [2007] 1 WLR 2679 , [2007] UKHL 37 at paragraph 69 "A final decision in any given case about the fairness of the trial where unfairness consisting of bias is alleged can only be made on examination of the facts of the trial as a whole after its conclusion…"[9]That approach commended itself to the Claimant when I put it to him but I did say I would listen to argument on the points if he were so minded and he has put one argument to me on appeal No. 9. It is this that it is wrong in law for a judge not to give written reasons when oral reasons have been given and it is wrong not to answer an application and not to give reasons. Judge Richardson's view about that was this:
"… It is an appeal in relation to an alleged failure to give written reasons. The duty to give written, as opposed to oral, reasons is found in rule 30(3) of the ETR. A Chairman must give written reasons in relation to a judgment if requested to do so by a party within the time limit set out in rule 30(5). He must give written reasons for a judgement or an order if required to do so by the Appeal Tribunal. He is under no duty to give written reasons for a decision at a case management discussion. He may choose to do so (as the Chairman in this case did in respect of the question of bias). But he certainly does not have to give written reasons for every case management order or refusal to make an order. Since this appeal asserts that the Chairman erred in law in failing to give written reasons for case management orders (or refusals to make such orders), it is misconceived. There are no reasonable grounds for appealing."
That is my view too. I consider that Judge Richardson's approach is correct. But if I am wrong about that, I would do what Judge Clark did which is to ask for reasons. Then the appeal would take a different character, it would no longer be a complaint that the Judge had failed to provide reasons for he will by then have done so. His reasons would then be the subject of an appeal if so advised or alternatively this point would be dropped. So that is my opinion under rule 3(10) on appeal number 9.[10]It seems to me that there is no utility in disposing of these appeals one way or another while the hearing is under way for the reasons I have given. The other two applications under Rule 3(10) will be adjourned and they may be restored within 42 days after the Tribunal in Cardiff gives its judgment later this year, and if not they will be dismissed without further order.[11]I also canvassed the logic of that in respect of the other appeals which are before the EAT and again it seems to me that the focus of the Employment Judge and of Mr Ezsias should now be on working towards the hearing which resumes in April and not in answering interim appeals and applications. So I will stay all of the appeals of which the EAT presently has notice so that they may be considered when the Tribunal gives its judgment. An application may be made to lift the stay and restore them together with the two adjourned parts of my case today within 42 days of the Tribunal's judgment, so that they can be combined with any appeal if so advised against the substantive judgment.[12]I have consulted Judge Clark as to the three orders made by him. He will consider whether he wishes to stay further steps once the Employment Judge has given reasons on his request.[13]If I may respectfully say so, on Mr Ezsias now becoming a member of the bar, if that is to be his career, he will be required to exercise judgment and as part of the training he will know that the dissection of good parts from the bad is the barrister's skill, as much as the surgeon's. The substance of this dispute is now firmly before the Employment Tribunal and every effort should be made to bring those proceedings to an end within the time now allotted. Then it will be for Mr Ezsias or the Respondent to decide whether to take the matter further and to seek advice. But at the moment, there is no point in all these interim appeals. If anything happens within the next few weeks of course Mr Ezsias may wish to raise an appeal but unless they are of a different character from the ones which I have considered today and the ones which I have stayed, I would be minded to take the same course. I am not shutting Mr Ezsias out of raising any new matters, one does not know what could happen, but I will decide whether they should be treated in the same way as the cases which I have dealt with.[14]The application on appeal 9 is dismissed, no further action will be taken and the Notice of Appeal is effectively dismissed. The application on the other two appeals is adjourned. All other Notices of Appeal are stayed.