Appeal No. EAT/0654/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 October 2002
     Judgment delivered on 26 November 2002

Before
THE HONOURABLE MR JUSTICE WALL
MRS J M MATTHIAS
MRS M T PROSSER

MRS F T EDMONDSON	APPELLANT

(1) B M I HEALTHCARE (2) MR NIGEL HARRIS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A J GRAHAM
Advocate	
For the Respondent	MR R GREENING
(Of Counsel)

MR JUSTICE WALL

1.	Mrs Florence Theresa Edmondson (the Appellant) appeals against a decision made by the Employment Tribunal sitting at London South on 5 and 6 February 2001.  The unanimous decision of the Tribunal was that the Appellant’s Originating Application be struck out on the grounds that the manner in which the proceedings had been conducted on her behalf had been scandalous, frivolous and vexatious.  The Tribunal, however, refused an application by the Respondent for costs.

The history of the proceedings
2.	In order fully to understand the issues raised by this case, it is necessary to examine the procedural history of the case in some detail. 

3.	The Appellant, who is an operating theatre senior sister, and who at the material time was working at the Shirley Oaks Hospital in Croydon, signed her Form IT1 on 7 February 2000.  Her claim was for “constructive dismissal, pay and racial harassment” against her employer, BMI Healthcare Limited (the First Respondent) and its Managing Director,  Nigel Harris (the Second Respondent).  The particulars in the Form IT1 read as follows:-

“I wish to lodge a complaint with the Industrial Tribunal because I have been constructively dismissed after an eighteen month period of harassment; victimisation, and unfair treatment and a five month period during which I have been denied any remedy through the hospital’s various procedures (grievance, disciplinary etc.)  I have lodged a complaint with the police (crime number given).”

4.	The Appellant gave the dates of her employment as lasting from 5 October 1987 to 25 January 2000.  The latter date appeared to puzzle the Respondents since, in their grounds of resistance, they stated that they had no knowledge of the Appellant terminating her contract of employment on 25 January 2000 or at all.  Otherwise, the grounds of resistance are a general denial of the Appellant’s claim, coupled with a detailed request for further and better particulars.

5.	On 29 August 2000, there was an Interlocutory Hearing before the Employment Tribunal held at London South, conducted by a Chairman alone, Mr G H K Meeran.  The Appellant then (as in subsequent hearings, including the hearing before us) was represented by Mr Andrew Graham.  Mr Graham is not legally qualified.  The Respondent was represented by its legal adviser, Mr White, who is a solicitor.

6.	The Tribunal ordered that the Appellant was to provide full details of her allegations by 12 September 2000 “indicating precisely the acts or omissions of each of the two named Respondents so that both know the case they have to meet”.  Any consequential amendments to the notices of appearance were to be sent to the Tribunal on or before 26 September 2000; and no less than three weeks before the hearing, both the Appellant and Mr Harris were to send to the First Respondent a list of the documents which they proposed to rely on at the hearing, together with copies so that the agreed bundle could be prepared by the First Respondent.  It was further ordered, by consent, that the parties would exchange witness statements no later than three weeks before the hearing and that the First Respondent would send to both the Appellant and to the Second Respondent a complete set of the agreed bundle no later than two weeks before the hearing. These are entirely conventional directions.

7.	In the reasons accompanying the Order, the Chairman gave a resume of what he understood the Appellant’s case to be, describing his outline as “a very brief statement in an attempt to summarise the matters alleged in several documents”.  This is what he said: -
It was clear that the (Appellant) and her representative felt very strongly about the manner in which she had been treated whilst in employment.

(The Appellant) confirmed that her claim was both of unfair dismissal and racial discrimination. In relation to the claim of unfair dismissal she was relying on the breakdown of the implied term of mutual trust and confidence. In relation to the claim of racial discrimination which also had a bearing on her constructive dismissal claim, the (Appellant) is alleging that the Respondents have, over a course of time, treated her less favourably compared to those who are not of her racial group. She will be relying on evidence of the manner in which other employees of ethnic minority origin had been treated. She alleges that the grievance procedure was a sham, that the delay of four months in dealing with her grievance was unfair and discriminatory. She alleges various procedural defects in the way in which her grievance had been handled. Finally she claims that her sick pay had been exhausted and after a period of ten weeks without pay she was left with no alternative but to resign. 

8.	It was plain to Mr. Meeran, and he was plainly right to think it, that the Appellant’s claim needed to be particularised. Mr. Graham appears to have agreed: certainly  Mr. Meeran recorded Mr Graham’s agreement that it was important for the parties as well as for the Tribunal to know in concise terms what were the issues which the Appellant wished the Tribunal to decide.  Mr Graham, accordingly, agreed that a fully particularised statement would be prepared, listing events in chronological sequence, indicating the acts or omissions alleged against the Second Respondent, as well as those against the First Respondent on which the Appellant relied. That statement was, however, never filed.

9.	At the same hearing, Mr White made it clear that, in the First Respondent’s view, the Second Respondent should not have been joined in the proceedings.  The Chairman, however, pointed out that subject to her identifying the precise acts or omissions on the part of the Second Respondent on which she relied, the Appellant was entitled to identify him as a separate Respondent.  Both sides were aware of the fact that in the event of the Appellant failing to identify any act of discrimination on the part of the Second Respondent, an application might well be made by the Respondents to have him dismissed as a separate Respondent.

10.	Finally, the Chairman recorded that both representatives (that is Mr White and Mr Graham) undertook to cooperate in insuring that all matters were fully dealt with prior to the hearing which was set to commence on 5 February 2001 with four days set aside.  The reasons conclude:
“(Mr Harris and Mr Graham) accept that the witness statements would be detailed and they understand that unless the Tribunal gave permission, they will not be allowed to introduce material which was not already in the witness statement.  The statement should be drafted in numbered paragraphs with cross references to the appropriate documents.  The statement should be concise and relevant to the issues to be decided.”

11.	On 13 September 2000, Mr Graham, following receipt of the Tribunal’s Order made on 29 August 2000, wrote to Mr Meeran.  The material part of the letter reads as follows:
“At the hearing you granted all my requests that (the Appellant) should be given details of all persons, documents and recorded transcripts relating to this case.  Mr White for BMI said that they had responded to ALL my correspondence.  I know that this was a bear (sic) faced undiluted lie, I asked that ALL these replies should be sent to me.
Please can you amend what I hope is a clerical mistake.  I am sending this letter to Nigel Harris and other named directors who I wrote to previously.  They are more guilty than the other individuals involved. There are unpleasant individuals in any society, race, or organisation.  They only become a problem in most cases because of a lack of leadership.  These directors have a duty of care to employees, patients and shareholders to reply to most, if not all of the issues raised.  If Mr White does not supply copies of the alleged replies to correspondence he is a party to this bullying; if he is a lawyer I will complain to his professional body.  PLEASE CLARIFY ASAP.”

12.	The Regional Secretary of the Employment Tribunal replied to this letter on 14 September 2000.  It was accepted that Mr Graham had asked for the Respondent to be ordered to produce all relevant documents and transcripts of the proceedings relating to this case.  The Chairman had asked Mr White whether he had any objection to disclosing such relevant documents to the Appellant.  Mr White had responded by saying that he had no objection.  In these circumstances, the Chairman had considered that it was not appropriate to make a formal order.  However, he had made it clear that in the event that either party felt that the other party was not complying with a reasonable request for information or documents to be produced voluntarily, that party should make a formal application for an order under the case management provisions of the Regulations then in force.  Accordingly, the Respondents were being sent a copy of the Regional Secretary’s letter, and were asked to respond to the letter dated 13 September from Mr Graham.  In particular they were asked to state whether they had refused or had objected to the provision of any relevant documents and if so, to give reasons for such refusal.  

13.	On 16 September 2000, Mr White wrote to Mr Graham.  The relevant portion of the letter reads as follows:
“..... as you are well aware, the Chairman at the directions hearing, Mr Meeran, made it abundantly clear that he was not prepared to consider any applications for the specific disclosure of documents or witness orders at this stage of proceedings.  Indeed, it is clear from a typed copy of his order of 29 August 2000 that no such directions were made.  We therefore find your comments in this regard to be utterly inexplicable.
We would also put you on notice that we regard a number of comments made by you in the course of correspondence to be defamatory against members of our Legal Department.  In particular, we refer to your wholly unfounded accusations of bullying, harassment, lying and discrimination in your letters of 13 September and 15 May 2000, and the accusation of ‘legal chicanery’ in your letter of 14 August 2000.  Furthermore, we regard the addressing of the envelope of your letter of 11 September 2000 to the ‘Racial abuse legal department’, a letter that went through the public postal system, as a clear attempt to lower the standing of this department.
This form of conduct can never be said to a reasonable or acceptable manner in which to behave, and if you do not desist from this course of conduct immediately, we will be forced to ask the tribunal to intervene.”

14.	On 19 September 2000, Mr Harris wrote to the Regional Secretary stating:
“1.	It is the Respondent’s intention at this stage of proceedings to disclose to the Appellant all documentation relevant to the case in hand.
2.	The Respondent only received the Appellant’s statement of case on the 13 September 2000.  This document is currently being considered and a response will be prepared in accordance with the Tribunal’s Directions by 26 September 2000.
3.	The Appellant’s statement of case raises a wide number of issues never before raised in correspondence, and in particular this is the first time detailed allegations of racial discrimination have been put to the Respondent.
4.	Once the Respondent has had an opportunity to draft its defence, the Respondent will be in a much better position to gather together and disclose any relevant documentation.  It is intended that this will then be bundled together, indexed and presented to the Appellant in good order.  The Appellant will then be in a position to request any further documentation that she feels is relevant.
5.	It was indicated to the Appellant at the hearing on 29 August 2000, that there might be a possible objection to disclosing letters of complaint provided in confidence by members of staff where the circumstances involved were not within the context of a disciplinary or grievance procedure.  This matter is currently under consideration and no decision, either to disclose or refuse disclosure, has yet been reached.
6.	The Appellant is already in possession of all correspondence sent to Mr Graham.  It is anticipated (conditional of course on the Appellant’s agreement) that this correspondence be included in the agreed bundle of documents for use at the hearing.
The Respondent, by way if its fax to the Appellant of 15 September 2000, is not refusing to supply relevant documents or transcripts.  Rather it is extremely difficult to provide disclosure of all relevant documents within one day of receiving a detailed claim and before a defence has ever been entered.”

15.	On 26 September 2000, Mr White sent to the Regional Secretary and to Mr Graham an amended grounds of resistance.  This is a detailed document amounting to some 51 paragraphs.
On 1 October 2000, Mr Graham wrote again to the Tribunal asking it to act on what he described as “the failure of BMI to provide further and better particulars mentioned in previous letters”.  On 2 October 2000, the Regional Secretary wrote to both Mr Graham and Sian Johnson, the Respondents’ solicitor,  advising them that the Chairman had considered the recent correspondence from the parties; that he considered both parties were sufficiently aware of their opponent’s case and reminding them of their obligation to ensure that the case was ready for hearing.  He said that no further orders would be made.  He further stated that both parties would be expected to behave courteously towards each other in all communications, whether in writing or by other means throughout the duration of the proceedings.  

16.	On 19 January 2001, Mr Graham wrote what is described as an “Open Letter” to the Regional Secretary of the Tribunals. For current purposes, the relevant assertion in the letter is that the First Respondent “had supplied none of the promised documentation”. The bundle of documents had only been received on 18 January 2001, which was three days later than the deadline set by the Tribunal on  29 August 2000. As the documents were late, Mr. Graham submitted that they should be “disallowed”.  He added: -
	Myself and (the Appellant) will be the only witnesses, we have nothing further to add that has not been stated or documented, the tribunal  has refused requests made to call witnesses and obviously staff who themselves are vulnerable to abuse are reluctant to appear

The letter ends with the following sentence: -
I will attempt to agree documentation with BMI but I feel this would be very hard, I suggest a witnessed tape recorded meeting made available to the Tribunal

17.	At the outset of the hearing before the Tribunal on 5 February 2001, counsel for the Respondents, Mr Basu, made an application for the Originating Application to be struck out on the basis of Regulation 13(2)(e) of the Employment Tribunals (Constitution etc) Regulations 1993, which were the Regulations then in force.  This rule provided that:
“(2)	  A Tribunal may ....(e) .... at any stage of the proceedings, order to be struck out any Originating Application .... on the grounds that the matter in which the proceedings have been conducted by or on behalf of the Applicant ... has been scandalous, frivolous or vexatious.”  

18.	The basis for the Respondent’s application was that no witness statement had been served by the Appellant, contrary to the order made by Mr Meeran on 29 August 2000.                   The Respondents accepted that they had delivered the bundle of documents three days late, and that its own set of statements was likewise three days late – that is to say, three weeks less three days from the commencement of the hearing.  It was, however, submitted by the Respondents that a late compliance with the order could be distinguished from a total failure to comply. There was a complete absence of any witness statements from the Appellant’s side.  This, it was submitted, left the Respondents in a position not knowing what the Appellant was going to say, and the Respondents were still not clear what they were alleged to have done wrong. Reference was also made to Mr Graham’s conduct in describing the Respondents’ legal department as “the Racial Abuse Legal Department” when writing to it, and to the abusive  descriptions of Mr White.
 
19.	Mr Graham responded to the application.  He pointed out that a number of pages in the Appellant’s bundle would, if read together,  provide a comprehensive account of the Appellant’s case, and when asked why he had not prepared witness statements, he replied, according to the Tribunal’s reasons, that he only needed witness statements if new information was being called.  What he said he wanted to do was to take the Appellant through the bundle of correspondence which,  he said,  would demonstrate the discrimination and unfair dismissal that was complained of.  It was for this reason that he had not prepared a witness statement for either the Appellant or himself.  He had sought witness orders for a number of people from the Tribunal, and this request had been refused.  He also pointed out that the order of the Tribunal on 29 August was less than he had hoped for, and that subsequent requests for orders on various matters had been refused. 

20.	Although Mr Graham complained about the late delivery of the Respondent’s documents,  he did not object to the Tribunal reading them.  In addition, the Tribunal suggested that if the late delivery caused him difficulties as the hearing progressed, short adjournments could be arranged to enable him to take instructions.

21.	Having retired to read the documentation (which was voluminous) the Tribunal reconvened on 6 February 2000.  It then delivered its decision on the application to strike out the Originating Application.  The application was refused.  The Tribunal found that the Appellant had failed to comply with the Order, which had been clear and unequivocal.  It pointed out that the Order had also gone into detail as to how the witness statement should be prepared. However, despite the Appellant’s clear breach of the order, the Tribunal decided that it would proceed by directing that certain passages in the documentation were to stand as the Appellant’s evidence in chief.  She could read those documents under oath as her evidence.  Beyond matters of clarification, Mr Graham would not be permitted to ask supplementary questions in the Appellant’s evidence in chief.

22.	In our judgment, the Tribunal’s decision not to strike out the Originating Summons at this point was, to put it at its lowest, fair to the Appellant. There had been a clear breach of the order of August 29 for the Appellant to file a statement setting out her case. The explanation put forward by Mr. Graham for the Appellant’s failure to file such a statement was patently unsatisfactory.  Such a statement is a basic obligation of any applicant. However, having exercised its discretion not to strike out the application, the decision to proceed in the manner described in the last three sentences of paragraph 21 of this judgment was plainly sensible. The Tribunal, within the Regulations, is the master of its own procedure, and was bound to impose order on the proceedings. 

23.	However else one may categorise it, the decision not to strike out the Originating Application at this point was plainly a decision in the Appellant’s favour.  That was not, however, the manner in which it was received by Mr. Graham. The Tribunal recorded his response to it in the following words:

“Mr Graham on hearing the decision of the Tribunal, stood up and unleashed a tirade of abuse at the Chairman claiming this to be a shocking decision against natural justice and wholly wrong.” 
 
24.	In argument before us, Mr Graham took issue with the words “a tirade of abuse”.  He said that if there had there been a tape recording of the hearing, it would be clear that the words “a tirade of abuse” were unwarranted.  As will be apparent in due course, however, Mr. Graham in this submissions before us made it clear that he still maintained the Tribunal’s decision, and in particular the manner in which it required him to conduct the proceedings was wholly wrong. 

25.	In any event, the hearing then proceeded as the Tribunal had directed.  Following completion of the Appellant’s evidence in chief, Mr Basu commenced his cross examination. We think it necessary to set out the following sequence of events in the words contained in the Tribunal’s reasons.  This is what is recorded:

“12  In answer to a question from the Chairman the Applicant explained that she considered that the treatment of her grievance by John Hare, Hospital Director, had not been on racial grounds.  Mr Graham interrupted the Applicant and sought to change the evidence that had been given by her under oath.  He sought to interfere with the Applicant’s evidence.  The Chairman warned Mr Graham on two occasions that interfering with the Applicant’s evidence amounted to contempt of court.  Preceding this outburst he had appeared to have been seeking to prompt the witness on several occasions – completing sentences for the Applicant and influencing and disrupting her evidence with a variety of techniques such as loud sighing, answering Mr Basu’s questions himself before the Applicant had had a chance to, and by puffing and paper rustling.  He had also repeatedly slid his chair from the representative’s table to the witness table to sit very close to the Applicant and point to various documents in the bundle and confer with her.  He had been warned repeatedly not to do this by the Chairman but had nonetheless continued.  Mr Graham had raised his voice on a number of occasions and again was warned by the Chairman on more than one occasion to desist.  It is acknowledged that the timbre of Mr Graham’s voice is naturally loud – the occasions when the Tribunal interjected were when the border between oratory and shouting was crossed.
13.  The pattern of the proceedings was that Mr Graham would need to be reminded by the Chairman as to his conduct and behaviour, he would apologise and matters would proceed for a little while and Mr Graham would then become agitated again and behave in the manner set out above.  He would be warned again and the pattern would continue.  He had been told, at least twice,  that he was on a final warning.
14.  Throughout the hearing Mr Graham made allegations of a wider nature than the claim set out in the Originating Application in relation to the Respondent organisation and he used intemperate language.
15.  After attempting to change the Applicant’s evidence about whether her treatment by John Hare was on racial grounds Mr Graham stood up, shouted and called the solicitor for the Respondent, Stephen White, a liar.  He was asked by the Chairman to retract the allegation and apologize.  Mr White appeared shaken.  Mr Graham repeated his claim, said he would neither retract nor apologize but agreed not to repeat the allegation in the hearing but he said he would repeat the allegation outside the Tribunal room.”

26.	At this point, Counsel for the Respondents made a further application that the Originating Application be struck out pursuant to Rule 13(2)(e).  Mr Graham offered to apologize, but would not retract the allegation that Mr White was a liar.  He was invited to show cause why the Originating Application should not be struck out.  He submitted that he stood by his allegation and considered his behaviour had not been “scandalous, frivolous or vexatious”.  The First Respondent’s organisation had been frustrating his attempt to seek justice for the Appellant for a period of two years.  Even if the case were struck out, he would advertise the Respondents’ behaviour. He invited the Respondents to take him to court for libel or slander.  He again offered to repeat the allegation about Mr White outside the Tribunal room and invited the Respondents to commence defamation proceedings against him.  

27.	Having heard Mr Graham the Tribunal released the Appellant from her oath to enable her to discuss with him whether or not she wished him to continue to represent her. The Tribunal adjourned to allow such discussion to take place.  This, in our judgment, was plainly the correct course to adopt.

28.	When the Tribunal reconvened, the Appellant was asked if she wished Mr Graham to continue to represent her.  She explained that she did and that he would undertake not to interfere with or interrupt her giving evidence again.  The Tribunal, however, was not reassured by that statement, and directed that the Originating Application be struck out.

The Tribunal’s Reasons
29.	It is, we think, appropriate to set out the Tribunal’s reasons for striking out the Originating Application in full.  They were as follows:

“23.	  The Tribunal did not reach this decision lightly.  It is the right of the Applicant to have his or her case to be heard in the Tribunal and to be represented by the person of their choice – whether lay or legally qualified.  The Tribunal was prepared to tolerate unruly behaviour and rude behaviour.  We are used to different styles of representatives from lay through to professional advisors and differing qualities and standards of representation.  It is important that the Tribunals maintain informality insofar as this is consistent with justice and equity being done and a degree of flexibility is also important, particularly where lay representatives are concerned.  We acknowledge that Mr Graham was an unpaid representative acting in the capacity of friend to the Applicant and that his assistance was well intentioned and his views of the Respondent organisation genuinely held.
24.  There were a number of reasons why the Tribunal considered that the behaviour of Mr Graham went far beyond acceptable standards of behaviour and fell into the category of the frivolous, vexatious and scandalous.  Firstly, the interruptions and the interference with the Applicant whilst she was seeking to give her evidence.  The Tribunal considered this made it impossible for a fair trial to continue.  Secondly, the allegation and accusation of the Respondent’s Solicitor being a liar and the Applicant’s failure to retract this and indeed the compounding of the problem by repeating it.  We could not agree with his analysis that the letter on page 358 of the bundle demonstrated that he had had been called a liar first by Mr White nor that there was anything improper in that letter.  Mr Graham’s shouting, agitated arm waving and the sliding of his chair across the room to nestle next to the Applicant whilst she was giving her evidence and the constant interruptions taken with the attempts to influence her evidence went too far.  He had been repeatedly warned by the Chairman and his conduct has persisted.  Further warnings were thought to be fruitless and the crucial issue, the acid test, for the Tribunal was that it would be impossible for a just disposal of the case to occur given the behaviour of Mr Graham.  We did not consider that he would abide by his assertion that the conduct would not be repeated.  The earlier final warnings had not worked.
25.  The Tribunal make this decision extremely reluctantly:  it is the primary duty to run a Tribunal hearing to enable a case to be put and to enable an Applicant (and indeed all the witnesses) to give their evidence and explain what happened so that the Tribunal can adjudicate in a manner consistent with justice and equity so that the Tribunal can reach fair decision.  This is particularly so where an Applicant has twelve years’ service and on the Applicant’s  own evidence had suffered stress and depression towards the end of her period of employment with the Respondent organisation.  It is the aim of a Tribunal to ensure a full airing with an Applicant’s own choice of representative.  Indeed Rule 9(1) requires us to conduct the hearing in such manner as is most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings.  However, the conduct of Mr Graham in the Tribunal room on 5 and 6 February 2001 made a fair hearing impossible and that, in the Tribunal’s view is scandalous, frivolous and vexatious conduct.  We strike out the Originating Application, on the second application made by the Respondent’s representative.”

30	The Tribunal refused an application by the Respondents for costs, and there is no cross appeal against that decision.  

The Right of the Applicant to the Representative of her choice
31.	Before we examine the Tribunal’s reasoning and the attack made on it by Mr Graham, we need to examine the role of the unqualified representative in Tribunal proceedings. The absolute right to be represented by the individual of their choice is one of the well established  rights which Applicants enjoy as part of their wider right to free access to Employment Tribunals.  Indeed,  the right to such representation is enshrined in section 6(1) of the Employment Tribunals Act, 1996 which, by section 6(1) provides that:

“A person may appear before an Employment Tribunal in person or be represented by –

	(a)	Counsel or solicitor, 
	(b)	A representative of a trade union or an employer’s association or
	(c)	Any other person whom he desires to represent him (our emphasis)”
	
32.	In Bache v Essex County Council [2000] IRLR 251 (Bache) , an Employment Tribunal took the view that the friend who was representing Mrs Bache was incompetent and ruled that he should be removed as her representative.  He was allowed to continue to assist her in an advisory capacity, but Mrs Bache had to represent herself. 	As it happened, Mrs Bache’s case was unarguable, and although the Court of Appeal held that the Tribunal had no power to order his removal, it dismissed her appeal on the ground that her case had no merit.

33.	The case is of importance, however, because the Court of Appeal clearly enunciated the rule that the right to a representative of choice was an unqualified right and was not therefore affected by regulations designed to ensure that the Tribunal had the power to control its own proceedings.  Giving the leading judgment, Peter Gibson LJ said:

“19
It is not in dispute that a tribunal has the power under regulation 9(1) to control the way a party or his representative conducts his case before the tribunal.  Thus, the tribunal can exclude irrelevant evidence and argument and stop lines of questioning and submissions which do not assist.  Kirkwood J well stated the position under regulation 9(1) and (2) in Zurich Insurance Co v Gulson [1998] IRLR 118  at paragraphs 13, 14 and 16, where he referred to the duty of the tribunal to keep the enquiry before it within what it considers to be proper bounds.  I wholeheartedly endorse the existence of that duty. Mr Linden submitted that there was no true distinguishing line between preventing a representative from asking questions or making submissions on the one hand and preventing the representative from doing more than assisting the party whom he represents to ask questions and make submissions on the other.

20
I see no difficulty in drawing a clear distinction.  The tribunal in the one case is exercising its undisputed power to control the conduct of the proceedings by the representative so as to confine the representative to what is relevant.  In the other case the tribunal is purporting to deprive the party of his statutory right to have the representative of his choice represent him but to reduce that representative to the status of a McKenzie friend.  In my judgment, there must be statutory authority if that statutory right is to be cut down, and I cannot find it in regulation 9(1)(2).  To my mind, Mr Roe is right to say that s.6(1) confers an unqualified statutory right.  If a party chose to be represented by a solicitor or counsel the tribunal may be able to ensure compliance with its directions by a threat to report the representative to his professional body, but it would not, in my judgment, be possible for the tribunal to direct that the party had to represent himself.  Similar considerations apply where a party chooses to be represented by a trade union or employers’ association representative.  I can see no difference in principle where the party chooses someone else to represent him under s.6(1)(c).  I do not see how the tribunal can take away the party’s right to that representative representing him.

21
I fully recognise that so to hold could leave tribunals with potentially very difficult situations, as the EAT envisaged, when a representative may try to persist in doing what he has been told not to do.  If the representative so acts with the knowledge and approval of the party, that may in an extreme case constitute an abuse of process such as may disentitle the party from relief or from being entitled to defend the proceedings.  The conduct may in an extreme case constitute contempt, though the tribunal itself will not be able to punish for contempt but may have to cause contempt proceedings to be instigated (see rule 52.1(2)(a)(iii) in Schedule. 1 to the Civil Procedure Rules and Peach Grey & Co v Sommers [1995] IRLR 363.  It is perhaps unfortunate that the leave of the tribunal is no longer a requirement for representation by a representative under s.6(1)(c).  But that is a matter for Parliament.”

34.	Paragraphs 20 and 21 of Peter Gibson's LJ’s judgment in Bache demonstrate the difficulties which can arise when an unqualified representative either misbehaves or makes it difficult for the Tribunal to continue.  In the overwhelming majority of cases, of course, unqualified representatives, even if they have little knowledge of the law, frequently have extensive experience of the workplace, and are helpful, courteous and of great assistance both to those whom they represent and to the Tribunal.  It is only in the tiny minority of cases that difficulties arise.  

35.	Where an Applicant before the Tribunal is represented by a person who does not belong to any professional body, and that person misbehaves, the Tribunal’s powers in relation to the individual concerned are limited. There is no professional sanction which can be invoked.  There is no body to whom the offending representative can be reported. The Applicant has an absolute right to be represented by the person concerned.  Regrettably, therefore,  if  repeated warnings about the manner in which the proceedings are being conducted have no effect, the only sanction  which the Tribunal has is ultimate one of striking out the Applicant’s claim.  A Tribunal’s reluctance to take this course is self evidently understandable.  It means that the case is not heard on its merits.  The Applicant may have an arguable case which is entirely obscured, and its presentation frustrated, by the manner in which it is conducted by the Applicant’s representative.

The correct approach to striking out an application under the Regulations
36.	It is, we think, for this reason that an Originating Application should only be struck out under what is now paragraph 15(2)(d) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 if, in short, the manner in which the proceedings are being conducted on the Applicant’s behalf  makes it impossible for the Tribunal to do justice between the parties.

37.	Tribunals dealing with litigants in person or unqualified representatives who misbehave have, in our judgment, an extremely difficult task.  On the one hand, the authority of the Tribunal and the dignity of the proceedings must be maintained.  On the other, the Tribunal needs to have what may be colloquially described as both “a broad back” and a “light touch”, and should not take immediate offence at  inappropriate behaviour or language.

38.	A good example of the approach to be avoided is, we think, given in Bennett v Southwark London Borough Council (Bennett) [2002] ICR 881.  In that case, an Employment Tribunal recused itself ten days into the hearing of an application relating to unfair dismissal, race and sex discrimination when the Applicant’s representative, who had made an application for an adjournment, told the Tribunal that “If I were a white barrister I would not be treated in this way” and “If I were an Oxford-educated white barrister with a plummy voice I would not be put in this position”.  The Tribunal regarded that as an allegation of racial bias which rendered it unable to continue.  A second Tribunal to whom the case was released struck out the Originating Application under rule 13(2) of the 1993 Regulations, and the Employment Appeal Tribunal, on the Applicant’s appeal, exercised its own power to strike out.  The Court of Appeal reversed that decision.

39.	Giving the leading judgment in the Court of Appeal, Sedley LJ asked the question: Was the case conducted in a scandalous manner?  In the course of answering that question, and discussing the meaning of the Regulation,  Sedley LJ said:

“26    What the rule is directed to, it seems to me, is the conduct of proceedings in a way which amounts to an abuse of the tribunal’s process: abuse is the genus of which the three epithets scandalous, frivolous and vexatious are species.  Secondly, what is done in a party’s name is presumptively, but not irrebuttably, done on her behalf.  When the sanction is the drastic one of being driven from the judgment seat, there must be room for the party concerned to dissociate herself from what her representative has done.  A principal can always prove a want of actual authority, and I do not believe that the advocate’s ostensible or implied authority, large as it is, extends (at least in the absence of ratification) to abusing the judicial process.
27   Thirdly, there may be less to the word “scandalous” than meets the eye.  In its colloquial sense it signifies something that shocks the speaker.  This seems to be the sense in which the Warren tribunal has used it: “the admitted conduct of Mr Harry was ... quite scandalous”; and it is its evaluation which the appeal tribunal has explicitly adopted.  The trinity of epithets “scandalous, frivolous or vexatious” has a very long history which has not been examined in this appeal, but I am confident that the relevant meaning is not the colloquial one.  Without seeking to be prescriptive, the word “scandalous” in its present context seems to me to embrace two somewhat narrower meanings: one is the misuse of the privilege of legal process in order to vilify others; the other is giving gratuitous insult to the court in the course of such process.  Each meaning has lexicographical and legal support, the first in the principal Oxford English Dictionary definitions of “scandal” and “scandalous”, which have to do with harm and discredit; the second in “scandalising the court”, a historical form of contempt; and both in Daniell’s entry in Byrne Dictionary of English Law ( 1923) cited by Ward LJ in his judgment at paragraph 53.  These considerations are not of course exhaustive, but they are enough to make it plain that “scandalous” in the rule is not a synonym for “shocking”.  It is a word, like its sibling “frivolous”, with unfortunate colloquial overtones which distract from its legal purpose: see the remarks of Lord Bingham of Cornhill CJ in R v Mildenhall Magistrates Court, Ex p Forest Heath District Council (1997) 161 JP 401. 

40.	Sedley LJ went on to hold that striking out had to be a proportionate response to the manner in which the case was being conducted.  He said:
“28   There is a further hurdle to be surmounted in any strike-out application, as both counsel before us agree. It is that if the conduct of a party’s case is shown to have been scandalous, it must also be such that striking out is a proportionate response to it.  This seems to me, as it seemed to counsel, to be a common sense axiom requiring no resort to article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.  But – evidently because it was not argued – this requirement was not addressed at all by either the Warren tribunal or the appeal tribunal.
29.   In the present circumstances there is no need to decide the proportionality of striking out as a response to Mr Harry’s conduct of the proceedings because for other reasons the decision to strike out cannot stand.  But proportionality must be borne carefully in mind in deciding these applications, for it is not every instance of misuse of the judicial process, albeit it properly falls within the description scandalous, frivolous or vexatious, which will be sufficient to justify the premature termination of a claim or of the defence to it.  Here, as elsewhere, firm case management may well afford a better solution.  For the present I simply record my own doubt whether striking out could really have been a proportionate response to the situation once the Lamb tribunal’s error in recusing itself had been recognised by the appeal tribunal.”

41.	The Employment Tribunal in the instant case did not have the advantage of the guidance given by Bennett, which was not heard in the Court of Appeal until about a year after it had given its reasons..  In our judgment, however, the Tribunal’s approach in the instant case seems to us entirely consistent with the extracts from the judgment of Sedley LJ in Bennett which we have cited.

42.	Mr Graham produced two cases in particular for our consideration.  In the first, Karam v (1) Credit Suisse First Boston (Europe) Limited (2) Mr D Crompton and (3) Mr A Cuthill, (Karam) the Employment Appeal Tribunal in a constitution chaired by Mr Recorder Burke QC (as he then was) on 6 April 2001 dismissed an appeal from an Employment Tribunal which had refused to strike out a claim.  In that case, the conduct alleged against the Applicant included; (1) at a without prejudice meeting,  threatening to make sensational and irrelevant allegations about the Respondent (including allegations of drug abuse on the part of a senior employee) unless the Respondent made an increased settlement offer; (2) making, in the proposed re amended Originating Application,  sensational and irrelevant allegations including allegations of criminal conduct on the part of non parties which ought not to have been included; (3) a refusal by his solicitor  (a) to give an undertaking not to reveal the contents of the proposed  re-amended pleading to the Press and (b) to provide a draft of the pleading to the Respondent’s solicitors in advance of service; (4) vexatiously making irrelevant allegations which were  withdrawn just before the hearing; (5)  anonymously sending packets of documents relevant to his claim to a number of senior employees of the Respondent in envelopes on the outside of which was an inked picture imprint of a black hand; (6)  giving information to the media as to without prejudice negotiations between the parties; (7) disclosure to the media of the contents of documents which had been obtained through the discovery process in the course of litigation; and (8) sending photographs of the second and third Respondents anonymously to a number of departments within the Respondents’ organisation before the without prejudice meeting.

43.	The importance of the decision in this case, as it seems to us, lies in the conclusion of both the Tribunal and the Employment Appeal Tribunal as expressed in the words of the Recorder in paragraph 57 of the judgment):

“...... bearing in mind that (the Applicant’s) claim is a substantial claim involved in a large number of various complaints of discrimination which prima facie ought to be tried, unless the effect of the misconduct was such that there was a substantial risk of prejudice to a fair hearing or that the overriding objective of the CPR (which should be applied by analogy to the present proceedings) were defeated, neither which is made out, striking out would not be appropriate.  Nor do we regard this as a case in which there has been such a flagrant and continuing affront to the Tribunal that striking out would be an appropriate remedy.  We would regard striking out, even in the hypothetical circumstances which we are considering at the stage of our judgment, as disproportionate and not a proper exercise of our discretion.”

44.	An obvious distinction between the case before us and Karam is that the conduct alleged in that case related exclusively to the period prior to the hearing of the originating application. It did not relate to the manner in which the proceedings were conducted in the face of the Tribunal, where the parties in due course were likely to be legally represented.   Both the Tribunal and the Employment Appeal Tribunal were clearly of the view that the Applicant’s behaviour, however serious, was not of such a nature as to prevent justice being done between the parties.  In the case before us, the Employment Tribunal was plainly of the view that Mr. Graham’s conduct of the proceedings before the Tribunal was not only unacceptable, but prevented justice being done. We do not, accordingly, think that Karam’s case assists the Appellant.

45.	The second case relied on by Mr. Graham was Wilson v De Keyser Ltd, a judgment of the Employment Appeal Tribunal delivered on 20 March 2001and reported at [2001] IRLR 324.  In that case, a Tribunal concluded that a letter of instruction written to an expert instructed on the Respondent’s behalf to examine the Applicant contained material which was irrelevant and abusive, and as a consequence decided to exercise its discretion to make an order that the Respondent’s first notice of appearance should be struck out on the ground that the proceedings had been conducted in a scandalous manner and in breach of the Human Rights Act 1998.

46.	The Employment Appeal Tribunal allowed the Respondent’s appeal.  Amongst the findings made by the Employment Appeal Tribunal was one that the Tribunal had erred in failing to ask whether a fair trial of the issues was still possible.  This, it held, is a crucial factor in relation to a discretion to strike out the whole of a case since if, of the facts, the Tribunal was in no doubt that a fair trial was still possible, then even if the instruction letter was scandalous, striking out was  entirely disproportionate and the Tribunal’s Order would have to be set aside.

47.	In the instant case, the Tribunal exercised its discretion to strike out the Originating Application because it considered that Mr Graham’s conduct as described in the reasons set out in paragraph 29 of this judgment and paragraphs 23 to 25 of its reasons made it impossible for a fair trial to continue.  In these circumstances, striking our was a necessary and proportionate response.  In our judgment, this is an entirely appropriate approach.  Conduct which is “frivolous, vexatious and scandalous” leads to an Originating Application being struck out when the conduct interferes with the process of justice and makes a fair hearing impossible. We do not think therefore, that De Keyser Ltd v Wilson assists the Appellant.

48.	Finally, on this aspect, we note that the Tribunal made the decision with extreme reluctance.  It regarded its primary duty as being so to conduct the proceedings as to enable there to be a fair hearing..  The Tribunal was acutely aware of the fact that the Applicant may well have had a case which, as a consequence of Mr Graham’s behaviour, was not going to receive a hearing on its merits.

49.	In these circumstances, the Tribunal was, in our judgment, absolutely right to allow the Applicant an opportunity to dispense with Mr Graham’s services.  She declined to do so.  She is an intelligent professional woman.  She must have been aware of the consequences of her action.

Bias
50.	Mr Graham disputed a number of the Tribunal’s findings as to his behaviour.  He complained that there was no transcript of the hearing before the Tribunal, a reading of which, he submitted would have vindicated him.  He asked that the hearing before us be tape recorded.  He had a machine ready for the purpose.  We were not prepared to allow Mr. Graham to make a recording of his own, but directed that the Tribunal’s tape recording equipment (normally used only for extempore judgments) be switched on for the duration of the hearing of the appeal.  

51.	In the Notice of Appeal, Mr. Graham asserted that the Chair of the Tribunal, Ms Stacey, had discriminated against him by not responding to the letters as she had to the Respondents.  An ordinary person, he asserted, “will see the Tribunal as prejudiced”.  It offered no criticism of the Respondents’ behaviour, nor had it required verbal or written explanations of their legal department’s flouting of Mr Meeran’s preliminary order. This, Mr. Graham submitted was the cause of his small mistake.  Ms Stacey, he submitted, breached the Regulations by not conducting the hearing in a manner most appropriate for the clarification of the issues and the just handling of the proceedings.  

52.	Both Mr. Graham and the Appellant swore affidavits. Unusually, the jurat of the Appellant’s affidavit  is undated, but which bears a Tribunal’s stamp of 14 May 2001.  The Appellant also accuses the Chair of bias and unfairness.  She said:

“8.../1/2001 and 6/2/2001 Stacey was biased and unfair, she gave us no written explanation setting down in writing that I was to be prevented from presenting my case.  Documents, all presented within the time limit, were to be with held and ALL respondents documents which had ALL been presented out of time would be allowed, I would not be allowed to question any of them, the length of the case stipulated by Mr Meeran would be halved.  No criticism of any kind was made about BMI.  Mr Graham was rebuked for statements made about the respondent all of which I support.  No argument was ever presented contrary to Mr Grahams documentation which shows BMI to be beyond any shadow of doubt liars.  The two ladies previously defended against BMI by Mr Graham were in effect re tried without his defence.”

53.	Later in the same document she says this:

“I do not agree with Ms Stacey's version of events.  A Mrs Wong witnessed the first day, she is willing to confirm what I say.  Mr Graham was not abusive, not one abusive statement of Mr Grahams has been specified.  Stacey had to take advice from the respondent on legal matters, she did not understand the difference between British nationality and English ethnicity, she thought the lack of non white employees was not to be discussed.  Mr Graham said at the start that he was happy to be banished from the case rather than be silenced as he was.  He did not repeatedly slide his chair to my table, he did this at the beginning and at the end.  I consider that the conduct of the case was a disgrace which was why Mr Graham occasionally butted in not to make a point, but to say that important facts were being suppressed.  His behaviour even at the end although regrettable should not be criticised in light of the distorted questioning of the respondent which was not challenged in any way by Stacey.  We were to be given up opportunity to explain our case.  Ms Stacey has grossly distorted events in her account.  Mr Graham did not attempt to introduce one single new issue, what is the issue he tried to introduce ????  when he was told that his allegations of lying were privileged he said that he would stop but that he would repeat and publish them to force BMI to take legal action against them.  He was prepared to apologise without reserve for any untruth, no argument was offered to refute the documented well proved lies of the respondent.  On Monday witnessed by Mrs Wong Ms Stacey had implied that it was almost funny that such criticisms should be made of the legal profession true or not.
I ask for ALL the Chairman's notes and any made by her two collaborators to be divulged as has been requested.  I ask for ALL the points that have been raised to be answered in full.  I hope that Mr Graham is not going to be denied an opportunity to debate the conduct of BMI by yet more red tape having been told by Ms Stacey that the Tribunal wanted to be fare to both sides.”

54.	As a consequence of these complaints, the Chair produced detailed comments.  She pointed out that she was sitting with two extremely experienced members, each with more than twenty five years experience.  She dealt carefully with all the allegations made.  We do not think it necessary to set out the detail of her statement, which, in large measure, reflects the reasons given by the Tribunal for the strike out.  We think it worthwhile, however, to cite the final few lines of her comments, which are in the following terms:

“The difficulty occasioned by the Applicant’s failure to supply witness statements in compliance with the order of 29 August 2000 was dealt with fairly in my view.  The Applicant was not precluded from advancing her case, but simply tied to the existing documentation that had already been disclosed between the parties.  It was the interventions of Mr Graham, the Applicant’s representative during the Applicant’s cross examination that made it impossible for the case to proceed fairly as is documented in the extended reasons decision.  It was therefore only on the third occasion of asking that the case be struck out and after due process the application was granted.  Furthermore it should be noted that the Respondent’s application for costs was not successful, which I would suggest again demonstrates lack of bias, rather that the opposite.  It was within our discretion to award costs, but we chose not to do so.

55.	In our judgment, the allegations of bias fail for a number of reasons. Firstly, of course, there can be no question that the Tribunal was biased towards the Appellant  in its decision not to strike out the originating application for her failure to file witness statements pursuant to the order of 29 August 1990. The same applies to the Tribunal’s refusal to make an order for costs against the Appellant.  

56.	Secondly, the directions which the Tribunal gave for proceeding after it had refused the first strike out application were manifestly sensible. 

57.	Thirdly, the sequence of events described by the Tribunal in its reasons  and by the Chair in her written comments on the Appellant’s and Mr. Graham’s affidavits was substantially corroborated by remarks made by Mr. Graham in his submission to us on this appeal.  Mr. Graham maintained his  refusal to accept that the Tribunal’s refusal to strike out the originating application for the  failure to file witness statements was fair;  or even a decision in the Appellant’s favour.  In his view, its consequence was that he was prejudiced in his conduct of the application on the Appellant’s behalf. He asserted that it was “extreme bias” to allow the case to proceed “castrated”. He described the conduct of the Tribunal as “very shady”. He told us that from the moment the decision was announced he knew that the whole case was farcical, and he knew that he and the Appellant were going to be “stitched up”. He agreed that he had told the Tribunal that the decision was “shocking”, and described the whole system to us as “institutionally corrupt”. Mr. Graham further told us that he did not deny calling Mr. White a liar, and said that he was not withdrawing anything of what he had said about the Respondents.

58.	The main thrust of the evidence in relation to Mr. Graham’s behaviour during the Appellant’s cross examination was not, as we understood,  it disputed.  Mr Graham told us that his  disillusionment  at the Tribunal’s decision about the manner in which he was required to conduct the proceedings,  led to a  belief  formed  at that point that the Chair was biased against him, and that the Appellant was bound to lose. This in turn caused him to behave in a way which he accepted “would normally be beyond the pale”. He admitted prompting the Appellant, and agreed that this was “sheer stupidity”.

59.	The need for a tribunal to assess the credibility of a witness’s evidence without any form of interference, and the importance of that in the adjudication process were both put to Mr Graham during the course of his argument.  He readily accepted that this was so, and explained his conduct – as we have already set out - by reference to his sense of disillusionment at the likely outcome of the proceedings. 

60.	In these circumstances,  the allegations of bias in the Tribunal are wholly unsustainable. It is clear to us that Mr. Graham did behave in the way described by the Tribunal in its reasons and by the Chair in her comments. We are in no doubt at all that the Tribunal was entitled to come to the view that Mr Graham’s behaviour rendered a fair assessment of the Appellant and the Appellant’s case impossible. The Tribunal was also entitled to reject the Appellant’s assertion that Mr Graham’s behaviour would improve.  The Tribunal, in our judgment, thus had no option but to strike out the Originating Application.  On the facts of this case, that was a regrettable but entirely proportionate response.

61.	An alternative course of action might, conceivably, have been for the Tribunal to recuse itself, and to direct that the matter to be heard by a different Tribunal starting afresh.  However, in our judgment, that course of action was not an option in the instant case.  Apart from the precedent it might set, the Appellant had made it clear that she wished Mr Graham to continue to represent her: she made the same clear to us when she spoke briefly after Mr Graham had concluded his submissions.  Accordingly, had the Tribunal directed that the matter be heard afresh by a different Tribunal, the overwhelming probability is that the Appellant would have been represented by Mr Graham, and similar difficulties would have reoccurred. 

62.	There may be a school of thought among litigants that aggressive advocacy is the most effective. It is not a view we share.  Although Mr Graham was, throughout, entirely courteous to us, he must appreciate that the proper functioning of any judicial system depends upon those engaged in it obeying its rules and observing the basic courtesies of life.  Behaviour which renders it impossible for the Tribunal to adjudicate on an Applicant’s case is not only bad advocacy, it renders the Applicant in question a profound disservice, since it strikes at the very heart of the Tribunal’s ability to do justice between the parties.  Mr Graham, in our view, should take the result in this case to heart before he embarks on any further Tribunal advocacy.