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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Balamoody v Nursing & Midwifery Council [2008] UKEAT 0115_08_0112 (1 December 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0115_08_0112.html Cite as: [2008] UKEAT 115_8_112, [2008] UKEAT 0115_08_0112

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APPEARANCES

 

For the Appellant	MR EDWARD BROWN (of Counsel) Instructed by: Bury Metro Racial Equality Council 94 Manchester Road Bury BL9 OTH
For the Respondent	MR MARK SUTTON (of Counsel) Instructed by: Messrs Ward Hathaway Solicitors Sandgate House 102 Quayside Newcastle upon Tyne NE1 3DX


 


SUMMARY

PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity

Pragmatic recusal or standing down by a Chairman because objection was taken to him and another Chairman was available does not lead to the need for that Chairman to recuse himself on another occasion (Ansar, Dobbs referred to). There was no ground for the original 'recusal' and the simple fact of such earlier recusal "without more" could not justify a case of apparent bias.


 


THE HONOURABLE MR JUSTICE BURTON

1. This has been the hearing of consolidated appeals by the Appellant against two decisions of the Employment Tribunal sitting in Manchester before Employment Judge Russell, sitting with Mr D Williams and Mr C Clissold. The first decision dismissed a claim by the Appellant for victimisation in breach of the Race Relations Act 1976, after a hearing between 23 and 27 October 2006, by a judgment sent to the parties on 21 November 2006: the second was after the costs hearing, arising out of such liability decision, before the same Tribunal on 28 February 2007, a decision handed down on 20 March 2007. In each case the Appellant applied for a Review. The application for Review of the liability decision was refused by Judge Russell by a decision sent to the parties on 10 January 2007 (the "Liability Review Judgment"), and the application for Review of the costs judgment was refused by a decision of Judge Russell sent to the parties on 18 April 2007 (the "Costs Review Judgment").
2. A number of grounds of appeal was put forward, but all of them have been dismissed as without prospect of success by the Employment Appeal Tribunal pursuant to Rule 3. The only ground that has been permitted to be put forward after a hearing under Rule 3(10) by HHJ Burke QC related to the refusal by the Tribunal to recuse itself, both on the third day of the liability hearing on 25 October 2006, and at the outset of the costs hearing on 28 February 2007. The only surviving paragraph of the original Notice of Appeal relating to liability (substantially replicated in the only surviving paragraph of the Notice of Appeal relating to costs) is (as drafted by the Appellant on his own behalf, although at the hearing he has had the benefit of representation pro bono by Mr Edward Brown of Counsel):

"Mr P J Russell was aware of the fact that he had prior knowledge of the Applicant's case and that at the previous Tribunal hearing he was requested to excuse himself and being replaced [sic] by another Chairman."

3. The starting point for an appeal in respect of a refusal by an employment tribunal to recuse itself is the powerful statement of Chadwick LJ giving the judgment of the Court in Dobbs v Triodos Bank NV [2005] EWCA Civ 468:

"It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judges were to recuse themselves whenever a litigant -- whether it be a represented litigant or a litigant in person -- criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases simply by criticising all the judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticised -- whether that criticism was justified or not. That would apply, not only to the individual judge, but to all judges in this court; if the criticism is indeed that there is no judge of this court who can give Mr Dobbs a fair hearing because he is criticising the system generally. Mr Dobbs' appeal could never be heard."

4. The history of the matter can be shortly described, but we shall interpose into it quotations, where relevant, from the various judgments of the Employment Tribunal, the affidavits sworn on behalf of the Appellant, comments on those affidavits by the Employment Judge and the lay members, and statements and comments on behalf of the Respondent. There was originally an order made by Judge Burke for attendance at the hearing before us of a number of witnesses to be cross-examined, but it became obvious to us, in our preparation for the hearing, that there was in fact no material difference in the various accounts, and that cross-examination would gain nothing and, of course, would have added very considerably to the cost and inconvenience to all parties, so after communication with both parties it was agreed, prior to the hearing, that their attendance could be dispensed with.
5. The story begins on 2 March 2006, when a Pre-Hearing Review was listed in a case between the Appellant and two individuals, a Ms Ternouth and Dr Goodwin. The Appellant was represented on that occasion by a solicitor, Mr Broomhead, and the two individual Respondents each by a solicitor. The individuals were employees of, respectively, the Greater Manchester Care Standards Agency and the Greater Manchester Strategic Health Authority, and the applications at the pre-trial hearing were to be that the proceedings against them should be struck out pursuant to Rule 18(7)(b).
6. Mr Broomhead, it seems, had indicated in advance to one of the solicitors for those Respondents that he intended to make an application to the Chairman (as an employment judge was then described), Mr Russell, in front of whom the hearing was listed, that he should recuse himself: it is not clear how far at any stage the term of art "recuse" was ever used, and we may, except where recusal is specifically referred to, use the word "stand down", which was helpfully put forward by Mr Brown in the course of submissions.
7. Mr Broomhead says that he found himself making that application before he had fully intended to, because it seems that that solicitor indicated to the Chairman that he understood that such application was to be made. The grounds of the application were briefly mentioned by Mr Broomhead, namely that Mr Russell had acted as Chairman on a Pre-Hearing Review previously in relation to a case in which his client, the Appellant, was involved, and had made a deposit order in that case, i.e. an order that the Appellant pay a deposit as a condition of being permitted to continue to take part in those proceedings. No more was said at that stage in support of such application or to explain why that fact (it turns out, although not mentioned at the time, that the hearing in question was nine years earlier, in May 1997), nor were the Respondents given any opportunity to respond to any arguments if they had been made.
8. We should indicate what the previous occasion in fact was in 1997, although it is clear that no detail in relation to it was mentioned on 2 March 2006 by Mr Broomhead (if indeed he knew it) nor addressed by him or by Mr Russell, nor was the fact mentioned that the earlier hearing was not as between the Appellant and the same parties; indeed the reaction of Mr Russell, it seems, was that he had no recollection of any previous hearing involving the Appellant, as indeed one would expect, given that it was a short interlocutory hearing nine years earlier. The order that Mr Russell had made, at a Pre-Hearing Review in which the Appellant acted in person, on 6 May 1997, was that the Appellant pay a deposit of £150 as a condition of being permitted to continue his complaint of race discrimination against the Manchester Health Authority.
9. We turn to the documents:

i) In the Liability Review Judgment Mr Russell said the following, at paragraph 24:

"24. The claimant states that when he attended a previous hearing of his case [this is a reference to the 2 March 2006 hearing, which of course was, as set out above, a Pre-Hearing Review of his claim against the two individuals, not against this Respondent] I was requested by a representative of the CRE to excuse myself and be replaced by another Chairman. In relation to this I can confirm that a Pre-hearing Review was listed before myself … At this hearing the Claimant was represented by Mr Broomhead … The hearing was not reached until late in the morning because there were other cases listed before me. At the outset of the hearing, Mr Broomhead drew my attention to the fact that many years previously I had conducted an interlocutory hearing in respect of an earlier claim brought by the claimant. He added that it might be preferable if the Pre-Hearing Review was conducted by another Chairman who had not previously dealt with any of the claimant's claim. I did not consider, and I still do not consider, that this was sufficient reason for me to recuse myself. However I indicated that, as I had other matters to attend to that day, I would enquire if another Chairman was available to conduct the Pre-Hearing Review. I further indicated that if no other Chairman was available I would give further consideration to, and hear submissions upon, whether or not I should recuse myself. In the event another Chairman [in the event Mr Chapman] was available to conduct the Pre-Hearing Review and he did so."

ii) Mr Broomhead's affidavit in material part reads as follows:

"5. I had some misgivings that [the 2 March 2006 hearing] had been listed before Mr Russell as he had previously heard a similar application against the Appellant in 1997 in respect of proceedings brought by the Appellant against different Respondents, but the same Respondents in these proceedings [before us Mr Brown confirmed that this statement was incorrect]. The reason for them was that having made one order against the Appellant Mr Russell might be influenced by that fact that he made an order for a deposit in previous proceedings and like those proceedings [sic] there was no merit in his claims.

6. I had expressed these misgivings to the Respondent's representatives whilst we were waiting to be called on. At that time I had not yet decided whether I was going to ask Mr Russell to excuse himself from hearing the Pre-Hearing Review.

…

9. I disagree with the three main facts set out in paragraph 24 of Mr Russell's judgment namely:

The hearing was reached late in the morning.

At the outset I brought it to his attention that he had ... conducted an interlocutory application in respect of an earlier claim brought by the Appellant, and

That he indicated he had other matters to attend to and he would inquire if another Chairman was available to conduct the Pre-Hearing Review.

10. Firstly, although the case was not called on immediately, it was not late in the morning … it was 11.35am. Secondly I did not at the outset bring anything to Mr Russell's attention. Mr Russell commenced the hearing that he had two things to consider; firstly to consider replacing the individuals with the organisations who employed them, and secondly whether or not to make a ruling on my proposed amendment.

12. Before he could continue however, Mr Spencer informed Mr Russell that I would be making … an application for him to recuse himself. At the time I remember feeling I had been "bounced" into making the application: however I continued with it. During the course of my application Mr Russell said that the Appellant's name was familiar to him but he could not remember in what context.

13. Thirdly, after I made the application Mr Russell adjourned to make a decision, and we were directed to go back to our respective waiting rooms. Whilst [we] were waiting, I saw Mr Russell take the lift downstairs and 20 minutes later we were informed that Mr Chapman would be taking the case. At no time did Mr Russell either call us back to give us the reason why he was transferring the case to another Chairman or speak to us at all."

iii) Mr Russell comments:

"4. In paragraph 9 of his affidavit Mr Broomhead refers to paragraph 24 of the Liability Review Judgment. I do not consider that there are any significant differences between what is stated in the said paragraph 24 and in paragraphs 9 to 14 of Mr Broomhead's affidavit. I am satisfied that paragraph 24 sets out a short but accurate account of what took place on 2 March 2006.

5. I accept that the case may well have been called on at 11.35am. I consider that such a time can properly be described as late in the morning.

6. I accept that at the commencement of the hearing on 2 March 2006, I set out what I considered to be the issues that had to be addressed. Shortly thereafter, Mr Spencer informed me that he understood that Mr Broomhead would be making an application for me to recuse myself. I then asked Mr Broomhead if this was correct and the basis of any such application. Mr Broomhead stated that he was making such an application and he brought it to my attention that I had conducted an interlocutory hearing in respect of an earlier claim brought by the claimant. I did not consider, and I still do not consider, that this was a sufficient reason for me to recuse myself. However I indicated that as I had other matters to attend to that day I would enquire if another Chairman was available to conduct the pre-hearing review. I further indicated that if no other Chairman was available I would give further consideration to, and hear submissions upon, whether or not I should recuse myself. Before adjourning to make enquiries as to the availability of another Chairman I sought the views of both Mr Spencer and Mr Upton. They both indicated that provided the case could be reached that day they adopted a neutral position as to whether it should be heard by myself or another Chairman.

7. After adjourning the case to make further enquiries I was informed by a listing clerk that Mr Chapman had finished his list and would be able to deal with the Pre-Hearing Review. I thereafter handed the file to Mr Chapman. I did not tell Mr Chapman that I had recused myself. However I did briefly explain to him why the case was being transferred to him. After the file had been transferred to Mr Chapman I asked my clerk to inform the parties that the Pre-Hearing Review was to be conducted by Mr Chapman. I accept that I did not call the parties back into my Tribunal room to give them the reason why I was transferring the case to another Chairman. However I did not consider that it was necessary for me so to do because I had made it clear, before adjourning to make further enquiries, that if another Chairman was available to hear the case then he or she would do so."

iv) The Claimant's further affidavit (his third) in response:

"6. I have read what Mr Russell has stated at paragraph .... I have discussed this matter with Mr Broomhead and neither of us recalls him saying that if no other Chairman were available, he would give further consideration to and hear submissions upon, whether or not he should recuse himself. The position is as it was set out in paragraph 13 of Mr Broomhead's affidavit."

v) Mr Russell's final comment:

"5. In relation to paragraph 6 of the claimant's Affidavit, I have a clear recollection that I stated that, if no other Chairman was available, I would give further consideration and hear submission upon whether or not I should recuse myself. My reasons for deciding that I would see if another Chairman was available to deal with the Pre-Hearing Review before inviting submissions upon the application to recuse myself were three-fold. First, I considered that if another Chairman was available he or she would be able to simply deal with the issues to be determined at the Pre-Hearing Review and tribunal time would not be taken up with dealing with the recusal application. Secondly I considered that if another Chairman was available to deal with a Pre-Hearing Review on its merits it would avoid the risk of an unmeritorious appeal in the event that I found against the claimant on the merits of the Pre-Hearing Review, upon the basis that I should not have sat on the Pre-Hearing Review. Thirdly I had other matters to attend to on that day and it was to the advantage of myself and to the administration of the tribunal if the Pre-Hearing Review could be taken by a part-time Chairman, thus enabling me to deal with my paperwork. I did not state all of these reasons to the parties because I did not consider it necessary for me to do so.

6. If no other Chairman had been available to deal with the Pre-Hearing Review, I would have informed the parties accordingly and I would have invited their submissions upon the application to recuse.

7. The Employment Appeal Tribunal gave judgment in the case of Ansar v Lloyds TSB Bank plc [2006] ICR 1565 some months after the Pre-Hearing Review which was held on 2 March 2006. If the Ansar judgment had been available to me at the time of the Pre-Hearing Review, I anticipate that I would have dealt with the application for Review on its merits, rather than adopting the pragmatic course of seeing if another Chairman was available to deal with the Pre-Hearing Review, thereby avoiding the need for submissions to be made, and a decision to be taken on the application to recuse."

10. We shall refer further to the judgment of the Court of Appeal in Ansar, but the passage of the earlier Court of Appeal decision in Dobbs, which we have set out above, was repeated and approved and formed very much the backbone of the decision of the Court of Appeal in Ansar, i.e. that recusal by an employment judge or chairman or any judge or tribunal should be the exception, and should only arise where there was, or was perceived to be, a real risk of bias, and that pragmatic withdrawal or standing down was consequently not advisable.
11. The next event took place very shortly after that hearing. The Appellant wrote a letter to the Regional Secretary of Employment Tribunals, dated 5 March 2006, informing the Tribunals that Mr Broomhead would no longer be dealing with his case, and recording that he understood from the pre-hearing on 2 March 2006 that there would be a case management hearing held in the near future. He then continued:

"I also wish to inform the Tribunal as follows:

On 2 March 2006, at the beginning of the Pre-Hearing Mr Martin Broomhead expressed his view about a different Chairman, and consequently the first Chairman was replaced by a new Chairman. I wish to inform the Tribunal that I do not have any objection about the choice of Chairman to hear my case. If a Chairman has heard my case in the past, I will have no objection if the same previous Chairman will require to hear again ... my current or new case."

12. This letter, which was known to and considered by Mr Russell on 25 October when, on the third day of the merits hearing, the Appellant came to make the application which has become the subject matter of the appeal before us, is obviously significant; Mr Sutton, who has appeared before us, as he appeared in October 2006, on behalf of the Respondent, relies upon the letter, and, although not expressly pushing it forward as waiver, although it seems to us that there would be a powerful argument that it does amount to waiver, given the clear knowledge that the Appellant had of all the circumstances, relies upon it as indicating that the fact that Mr Russell had stood down on 2 March did not suggest that he could not hear any further claim against him or would in any way be biased if he were to do so. The Appellant, in his second affidavit, deals with the letter in this way:

"5. It is true that I wrote the letter dated 5 March 2006 ... However my motive [in] writing it was simple, namely should my appeal against the decision of Mr Chapman be successful [Mr Chapman who, as set out above, replaced Mr Russell on 2 March 2006 having, in the event, found against the Appellant on that interlocutory hearing] I didn't wish to incur the enmity of any Chairman who would hear that case or my claim against the Nursing and Midwifery Council and in any event I would expect a fair hearing from any Chairman who had previously heard any of my previous claims."

13. The full merits hearing, brought by the Appellant against the Respondent, was listed for hearing on 23 October 2006 and, as one would indeed expect in the light of that letter, no recusal application was made at its outset to Mr Russell, who deals with this in the Liability Review Judgment, at paragraph 25:

"At the outset of the hearing on 23 October 2006 the claimant did not make an application for me to recuse myself from hearing his claim. Further, I did not consider that it was necessary for me to raise the matter. This was because I had already read the claimant's letter of 5 March 2006 and I was aware that he had no objection about the choice of Chairman who would hear his case. Further, I was satisfied that the fact that I had dealt with an interlocutory hearing of one of the claimant's previous claims did not provide a proper or sufficient basis for me to recuse myself from hearing his present claim."

14. The Appellant explains, in his second affidavit, that "the reason why at the commencement I did not make the application for recusal, was that I expected a fair hearing and therefore there would be no need for me to make one" (paragraph 6).
15. It is apparent that the Appellant did not feel things were going well in the first two days of the hearing, and formed the view that the Chairman, Mr Russell, was biased against him. Such allegations as he has made, by reference to interventions etc, were incorporated in his original grounds of appeal, and have been found by the Employment Appeal Tribunal to be without foundation, when dismissing them under Rule 3. That however is the setting for his sending of a letter of 25 October 2006 to the Regional Secretary of Employment Tribunals, which reads in material part as follows:

"It is with reluctance that I am writing this letter for the attention of the Employment Tribunal and the Chairman who is conducting the hearing during this week. Yesterday was the second day of the hearing and I wish to express concern about the conduct of the hearing by the Chairman. I am beginning to feel that I am not having a fair hearing under the present Chairman. I note as follows:

...

(4) If I may recall that this same Chairman when attending a previous hearing of my case ... was requested to excuse himself and being replaced by another Chairman.

...

6. I do not have any complaints of the other two members sitting at the Tribunal's hearing."

16. In his second affidavit the Appellant describes what happened (and, as will appear, there is no material issue about the events):

"17. ... When the hearing started Mr Russell informed the Tribunal that he had received a letter. I then told him I wanted to read out what I [had] written in the letter. I then gave a copy to Mr Sutton and read out the salient points that were contained in it.

18. Mr Sutton was then asked for his comments and he replied by stating that he opposed the application for recusal on the grounds that what I had written was irrelevant and that I had no grounds for recusal ...

19. In the letter I raise no objection for the other members to rehear the case and it was only Mr Russell who I required to recuse himself and I concluded the letter by asking him for guidance. The reason why I was happy for the other members to rehear the case would be to cause as little inconvenience as possible when it came to be relisted.

20. The Tribunal rose to consider my application: when it returned Mr Russell informed me that it would not be possible to bring a new Chairman and [asked] if I wished to continue with my application. At no time did he refer to the letter of 5 March 2006 nor his previous recusal. Mr Sutton did not take the point about the previous recusal either. As a litigant in person, I asked in my letter for guidance, instead I feel as though he put me on the spot and I realised that to continue with my application was pointless. I therefore withdrew it."

17. In the Liability Review Judgment, Mr Russell said as follows:

"26. During the course of the discussion about the claimant's letter of concern at the outset of the hearing on 25 October 2006, the claimant stated that he would prefer that the hearing should continue with the same lay members, but with a different Chairman. The claimant was informed that this would not be practicable nor desirable in the interests of justice. He was therefore asked whether he wished to make an application that the Tribunal should recuse itself, which would result, if the application was successful, in his claim being listed before a new Tribunal at a later date. The claimant stated that he did not wish to make such an application."

18. As for the lay members, I shall quote from Mr Clissold's account (Mr Williams' is similar):

"My notes record that on the morning of the third day of the hearing before the Tribunal sat, Mr Russell showed the other side member and myself the letter dated 25 October 2006 written by Mr Balamoody. I recall that he briefly explained to us the previous occasion when he had removed himself from a case involving Mr Balamoody, because it had been convenient to do so, also that he had received a letter from Mr Balamoody after the Pre-Hearing Review to say, in effect, that he did not object to Mr Russell hearing cases involving him in the future. I also recall that we discussed the options which were, as we saw it, either to stop proceedings completely for them to reconvene with a new Panel, or to continue. The option Mr Balamoody's letter wanted (i.e. to continue with the same side members but a different Chairman) did not seem to be a realistic possibility. We decided to go into the Tribunal and listen to what Mr Balamoody had to say.

In Tribunal, Mr Russell asked Mr Balamoody what he wanted, and to explain the letter dated 25th October. Mr Balamoody said that he wanted a fair hearing. Mr Russell replied (and I quote from my notes) that he was "getting a fair and impartial hearing". Mr Russell went on to explain that it would not be possible to continue with a new chairman; the options were to continue or to start again with a new panel. Mr Russell pressed Mr Balamoody whether he was making an application for the hearing to be abandoned: my notes show that Mr Balamoody did not make any application.

The letter was also shown to Mr Sutton, the Respondent's representative, who commented on each of the points made in the letter. His views (which I noted and agree with) were (i) that the purpose of the letter was to put a marker down (ii) that there was no substance to the accusations and (iii) any interruptions [which and there had been by the Chairman in the course of the hearing had been justified]. We then adjourned to consider the matter. We considered the letter and what had been said by both parties. The decision to continue was unanimous ... The reason given that Mr Russell recuse himself, because he had done so in the past as a matter of convenience, was not a sufficient reason."

19. Mr Hesselberth, the solicitor instructing Mr Sutton, quotes from his notes as to the exchange between the Appellant and Mr Russell, which accords entirely with the description given in the Liability Review Judgment and by the lay members.
20. For completeness, we refer to the renewed application for recusal, which was made at the outset of the costs hearing by Mr Broomhead, who was once again now instructed by the Appellant. Mr Brown sensibly indicates that no separate point is made in relation to the refusal to recuse at that stage, by which time the merits hearing had been concluded and the only matter outstanding was that of costs, and that the two appeals stand or fall together. In the costs judgment, at paragraph 5, the Tribunal records:

"5. Mr Broomhead made a second application, namely that the Tribunal should recuse itself. The basis of this application is that on 6 May 1997 the Chairman conducted a Pre-Hearing Review in respect of a claim brought by the Claimant, not against the present Respondent (or its predecessor) but against Manchester Health Authority. The Tribunal is satisfied that the fact that the Chairman conducted a Pre-Hearing Review in 1997 in a claim brought by the Claimant against another Respondent is not a good reason for the Tribunal to recuse itself."

21. Mr Broomhead, in paragraph 18 of his affidavit, records that:

"Mr Russell then stated that he had refused to recuse himself during the hearing because:

He had received a letter from the Appellant distancing himself from my application to recuse on 2 March 2006, and that he was quite happy for any Chairman to hear his case; and

In his letter of 25 October 2006 the Appellant merely requested his recusal and was quite happy for the lay members to continue to hear his case, which would be completely impracticable."

22. Mr Broomhead's account was confirmed by the Appellant. The lay members confirm the account given in the Tribunal's judgment, and that it was unanimously agreed that there was no substance in any application for recusal.
23. In the Costs Review Judgment, Mr Russell stated as follows:

"3. ... At the costs hearing the Tribunal considered the claimant's application that it should recuse itself. The Tribunal decided that the fact that the Chairman had conducted a Pre-Hearing Review in 1997 in a claim brought by the claimant against another respondent was not a good reason for the Tribunal to recuse itself. This matter is properly dealt with in paragraph 5 of the Reasons. Clearly the said paragraph 5 does not mention the fact that the Chairman had allegedly recused himself from hearing an application in a previous matter involving the claimant. However, this issue was canvassed during the course of the costs hearing, and the issue is further dealt with in paragraph 24 of the [Liability Review Judgment] ... In the said paragraph 24 I set out what took place at the Pre-Hearing Review held on 2 March 2006 relating to the claim brought by the claimant against the Manchester Strategic Health Authority and the Commission for Social Care Inspection. At the hearing in March 2006 I did not, and I do not, consider that the fact that I had conducted a Pre-Hearing Review in May 1997 in a claim brought by the claimant against Manchester Health Authority was a sufficient reason for me to recuse myself. However, I indicated that as I had other matters to attend to that day, I would enquire if another Chairman was available to conduct the Pre-Hearing Review ..."

24. In his comments on the final round of affidavits Mr Russell wrote as follows:

"... I clearly remember that the letter of 5 March 2006 was known to me before the commencement of the hearing [of 23 October 2006] and that the letter was briefly discussed with the Members on 25 October 2006. In the letter of 5 March 2006 it is stated that the claimant did not have any objection about the choice of Chairman to hear his case. Further he adds that if a Chairman has heard any cases in the past, I will have no objection if the same previous Chairman will require to hear any of my current or new case. It was, and is, my clear understanding from reading this letter that the claimant did not object to me or to any other Chairman hearing his case. I briefly informed the members of this fact on 25 October 2006, by either informing them as to the contents of the letter and/or showing the letter to them. I note that the stance taken by the claimant in his letter of 5 March 2006 had certainly changed by 8 January 2007. By a facsimile letter to the Tribunal of 8 January 2007, Mr Broomhead wrote that the costs hearing should not take place before Mr Russell. He added that "Furthermore, the hearing should not be listed before any other Chairmen who have heard any application concerning our client. For the sake of completeness, this includes Mr Chapman, Mr Coles, Mr Leahy, Mrs Porter, Mr Russell and Miss Woolley."

25. There is no material issue therefore as to what happened on 2 March 2006, but the dispute may simply be one of nomenclature. Mr Broomhead and today Mr Brown have described what then occurred as a recusal by Mr Russell. That this is how it was described on the day is clear from the judgment of Mr Chapman who took over from Mr Russell on 2 March and, as set out above, in fact struck out the Appellant's claims against the two individual Respondents. Mr Chapman records, in his Reasons:

"The application came before Mr Chapman as a Chairman sitting alone to determine at a Pre-Hearing Review whether the proceedings against the First and Second Respondents in this matter should be struck out ... The application originally came before Mr Russell as a Chairman sitting alone, but objection was taken to Mr Russell hearing the application during the course of legal argument, as a result of which Mr Russell recused himself and the hearing recommenced before Mr Chapman."

26. However there is no issue that what occurred – standing down or recusal – took place without any development of the grounds, without any referring to or particularising of the nature (or indeed date) of the hearing, in fact nine years earlier, over which Mr Russell had presided, and in particular there was no inter partes argument at all, and no consideration and resolution of the issue by Mr Russell. He simply took the de facto step of finding someone else to take over, in order to avoid any argument. The question then is whether, as Mr Brown asserts and Mr Sutton robustly resists, the simple fact that Mr Russell so recused himself, if that is a proper description of what occurred, means that (notwithstanding the letter of 5 March in the meanwhile) he should have recused himself on 25 October when, after the letter of 25 October 2006 to which I have referred, an application which can be so interpreted to that effect was made by the Claimant.
27. We use those words, because it is clear that what in fact happened was that the Appellant's application was that only Mr Russell the Chairman should stand down, and that the other two members should continue. It is that application which Mr Russell records having informed the Claimant in paragraph 26 of the Liability Review Judgment "would not be practicable or desirable in the interests of justice". The suggestion by Mr Brown that, in some way, this was the Tribunal's response to an application that the Tribunal should recuse itself on grounds of bias is plainly wrong. What was being pointed out, as is entirely clear, not only from paragraph 26, but also from the comments by the lay members, was that the kind of partial application that was being suggested was, for reasons articulated by Mr Russell, and indeed, in their comments, supported by the lay members, simply not practicable or sensible; nor indeed just, given that, if indeed Mr Russell had in some way been biased, it must have been inevitable that the lay members, after two days of sitting with him, would have been similarly so infected, or at any rate arguably so.
28. That option having been sensibly and rightly ruled out, the Appellant was then invited to make a recusal application, and he declined to do so; but, particularly as he is unrepresented, we pay no regard to the fact that he backed off, as he clearly did, and shall deem him to have made such an application. But in those circumstances, given that in fact such application was not in terms made, it is not, and cannot be, a matter of criticism of the Tribunal that they did not in terms reject, or give reasons for rejecting, an application which was not in fact before them. It is essential to consider what the proper answer was and would have been to an application by the Appellant that the Tribunal should recuse itself made on 25 October 2006.
29. The law as to when a tribunal or judge should accede to a recusal application is now clear, not only from the guiding words of Chadwick LJ in Dobbs referred to above, but from the full consideration by the Court of Appeal in Ansar, referred to above. We shall not incorporate into this judgment in its entirety the summary which Waller LJ, giving the judgment of the Court, approves, in paragraph 14 of his judgment. The relevant passages include:

"(v) The EAT should test the employment tribunal's decision as to recusal and also consider the proceedings before the tribunal as a whole and decide whether a perception of bias had arisen: Pill LJ in Lodwick [v London Borough of Southwark [2004] IRLR 554 CA] at paragraph 18.

(vi) The mere fact that a judge, earlier in the same case, or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without something more [our underlining] found a sustainable objection: Locabail [(UK) Ltd v Bayfield Properties Ltd [2000] IRLR 96] at paragraph 25 ...

(vii) Parties cannot assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case. Something more must be shown [our underlining]: Pill LJ in Lodwick.

(viii) Courts and tribunals need to have broad backs ...

(xi) Whilst recognising that each case must be carefully considered on its own facts, a real danger of bias might well be thought to arise (Locabail at paragraph 25) if:

(a) there were personal friendship or animosity between the judge and any member of the public involved in the case; or

(b) the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or

(c) in a case where the credibility of any individual were an issue to be decided by the judge, the judge had in a previous case rejected the evidence of that person in such outspoken terms [our underlining] as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or

(d) on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms [our underlining] as to throw doubt on their ability to try the issue with an objective judicial mind; or

(e) for any other reason, there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections [our underlining] and bring an objective judgment to bear on the issues."

30. It is against the background of that clear guidance that, although recognising that such categories are not closed, and that if there is any real doubt whether there is a real danger of bias, that doubt must be resolved in favour of recusal, the question as to whether in any given case there is a real danger of bias needs to be considered, and it is that test which falls to be applied in this case.
31. Mr Brown sought to submit that, as at 25 October 2006, all that needed to be looked at was the fact that Mr Russell had previously stood down, such that, from the point of view of a fair minded and informed observer having considered the facts (Lodwick) that would be enough to establish a real danger of bias if the tribunal continued. However that plainly offends against the obligation to consider all the facts and to consider whether in fact there is, albeit objectively tested, a real danger of bias. In this case it is manifestly significant that such fully informed observer would know and take into account that the previous "recusal", if that is in fact what it was, by Mr Russell was one that was not reasoned and not based on any argument before him. He simply pulled out on pragmatic grounds.
32. It is only necessary to ask whether there was any ground for him to have recused himself on 2 March 2006, and at one glance the fair minded fully informed observer would see that there was none:

i) The hearing to which reference was made by Mr Broomhead, although, as we have indicated above, it does not look as though anyone had the precise facts and figures at their fingertips, was nine years earlier and was one which was plainly not in the mind of Mr Russell.

ii) It was not an application or a hearing as between the same parties as were now before him – this error by Mr Broomhead in his affidavit may or may not have been in his mind at the time when he made his application in March 2006, but he certainly made the error in his explanatory affidavit.

iii) None of the examples, which may not be exhaustive but are plainly illustrative, set out in paragraph (xi) of the Ansar guidance is anywhere near satisfied. Plainly (a) and (b) have no relevance at all and no 'extraneous considerations, prejudices or predilections' within (e) are pointed to. The highest that it is now put by Mr Brown is that, in order to make an order for a deposit to be paid, Mr Russell must, in 1997, have formed a view as to the relative lack of merit of the application then being made by the Appellant. He points to the fact that it is usual that a Chairman who has made a deposit order is not allocated to hear the subsequent merits hearing, although he accepts that there is no rule to that effect, and it must depend upon its precise circumstances, particularly if there were the risk of pre-conceived judgment about the facts of a given case. In the circumstances which we are considering, all that had happened was that it seemed that Mr Russell must have in 1997 formed a view, not that the case before him was unarguable, but that he had sufficient doubts about that case that there ought to be a deposit. That is a million miles away from any suggestion that the employment judge had "in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion" (c) or "had expressed, particularly in the course of a hearing, in such extreme and unbalanced terms as to throw doubts on his ability to try the issue with an objective judicial mind" (d). Those very descriptions indicate the Court of Appeal's view that, even if there had been an adverse finding on credibility by a judge against the same party, or even if the judge had expressed views adversely to a party in relation to the very facts in issue, that would not disqualify the judge without more, in the absence of that criticism being outspoken or that expression of adverse views being in extreme and unbalanced terms.

33. We are entirely satisfied therefore that there was no conceivable basis for recusal by Mr Russell on 2 March 2006. We are equally satisfied that, had the matter been fully argued on 25 October 2006, and argued by a legal representative on the part of the Appellant, the simple fact of the recusal on 2 March 2006 would not have remained alone; or would soon have been disposed of, and if there were any arguable point at all, it could only have been one aimed at establishing that such recusal was justified and should not have been gone back on. We have already indicated our conclusion that it plainly was not justified. We have also referred to Mr Sutton's submission that the fact that without more recusal was not justified is evidenced from the Appellant's own view in his letter of 2 March 2006 and the fact that he did not make a recusal application at the outset of the hearing on 23 October.
34. The reality is that the Appellant thought that there was something in what had happened on the first two days of the hearing on 23 and 24 October, but the Employment Appeal Tribunal has already concluded that there was nothing in that. Thus the very words of Pill LJ in Lodwick at paragraph 18 which form the basis of paragraph (v) of the Ansar guidance have been fulfilled in this case, namely that in relation to such recusal the full circumstances have been looked into, both the circumstances prior to the hearing in question (the lack of any possible need to recuse or any possible risk of bias by virtue of the events in 1997) and the events of the October 2006 hearing itself.
35. If there were any doubt that the contention that the simple fact of an earlier recusal must itself lead to a further and indeed continued recusal, notwithstanding the terms of the letter of 5 March 2006, is unsupportable, that is put beyond doubt by the decision of the Employment Appeal Tribunal per Elias P in Da'Bell v NSPCC [2008] UKEAT/0044/08.
36. As to Da'Bell:

i) that case illustrated very clearly the requirement of the Court of Appeal in Locabail, Lodwick and Ansar that there be something more than simply previous adverse comment about, or even criticism of, the litigant.

ii) this case is a fortiori, in that there was in Da'Bell a previous conclusion reached by the employment judge that there were grounds upon which he should recuse himself, unlike here.

37. In Da'Bell the employment judge had considered that there was reason to recuse himself on the claimant's application, and had done so, without consulting the respondent. The respondent then sought a review of the decision, and the Chairman reviewed his decision and reversed his previous recusal. The grounds for his original recusal decision related to the fact that the claimant drew attention to there being some disciplinary enquiry in relation to the employment judge, which, it seems, was concluded to have been resolved by the time of the review, so that the employment judge then indicated, in granting the review application by the respondent, that he had been "over-hasty" in recusing himself. On appeal by the claimant, the EAT (per Elias P) concluded that:

i) the employment judge had acted unlawfully in first recusing himself, and then reviewing that recusal, on each occasion without consideration by the full tribunal, which was already seised of a hearing which had lasted six days prior to its being adjourned upon the ill health of the claimant, and without the opportunity being given to both parties to make representations.

ii) it was not the case that, once a tribunal had reached a decision to recuse itself, it could not change its mind and reverse that recusal (paragraphs 31-32 of the judgment).

iii) it was not the case that the reversal of an initial decision that there was an apparent bias would lead a fair minded and informed observer, having considered the relevant facts, to conclude that there was a real possibility of bias (paragraphs 33-34 of the judgment).

iv) there was however in that case something more, namely the fact that "whatever the merits of the original case alleging bias, there are now factors which have emerged since, and which decisively establish the appearance of bias. The claimant … has effectively been the whistleblower, drawing the attention of the authorities to the misconduct of the employment judge. That has no doubt caused him distress and anxiety … furthermore … that has led to him being reprimanded" (paragraphs 35-36 of the judgment). This is what determined the case in favour of recusal.

38. It can be seen immediately that there is a substantial contrast with this case so far as the facts are concerned. In the case before us, there was a pragmatic standing down by the employment judge, without any adjudication that there was apparent bias: even if that amounted to a de facto recusal, it still did not involve any conclusion, whether after argument or otherwise, that there was a ground for doing so. However, even if it did so amount, that does not prevent a reconsideration on the second occasion when the matter was properly considered (and of course, it must be borne in mind, considered against the context of the Appellant's own view, as expressed in his letter of 5 March 2006). Further the background does not involve adverse comment, or even criticism of the litigant, on a previous occasion by the Chairman, and certainly not a rejection of his evidence in such outspoken terms as to throw doubt on the employment judge's ability to approach such person's evidence with an open mind on any later occasion nor expression of views in extreme and unbalanced terms. It simply involved nine years earlier a conclusion that the particular case brought by the Claimant at that stage, against different respondents, had insufficient merit to permit its continuance without the payment of a deposit.
39. We are entirely clear that we are driven by the persuasive and recent judgment of the Employment Appeal Tribunal given by the President, and the binding authority of the Court of Appeal, that we must identify something more than either such a conclusion in 1997 as to the merits of a case then being brought or a previous recusal, de facto or otherwise, in the circumstances to which we have referred, before we could find that the employment judge and the tribunal was even entitled, never mind obliged, to accede to an application for recusal on 25 October 2006, or at the costs hearing subsequently.
40. If there were no grounds for recusal in March 2006, as there was not, then the simple fact that he stood down or recused himself without hearing argument, does not, as Elias P made clear, without more lead to the need for recusal on the second occasion. If there had been grounds on the first occasion, and/or if those grounds were still relevant on the second occasion, then they would need to be considered and if there was and is, as we are clear, no substance in them, then the simple fact of the prior recusal would be, and remain, irrelevant. Recusal, particularly when a case is part heard and both parties have incurred time and expense in preparation and argument, is not a matter to be taken lightly. The consequences, not only to the parties but also to the interests of justice, as is made clear by Chadwick LJ in Dobbs, must obviously be taken into account, although if there is a real danger of bias, or apparent bias, then that must prevail. We are entirely satisfied that there was no such risk whatever in this case.
41. We would only add that the very consequence which Chadwick LJ referred to in Dobbs can be well illustrated by this case, by reference to the fax which, on his return to the case in January 2007, Mr Broomhead sent to the Employment Tribunal on 8 January 2007 referred to in paragraph 24 above. He listed six Chairmen, including Mr Chapman and Mr Russell, who had heard any application concerning his client, in front of whom he said any hearing should not be listed. This emphasises the need for there not to be the kind of pragmatic standing down which occurred in this case, with all good intentions, and emphasises that the employment judge is right in his comments recited at paragraph 8(v) that, in the light of the conclusions of the Court of Appeal in Ansar and Dobbs, such a course is not one which it is appropriate to have followed or to follow in future.
42. We have no doubt that this appeal must be dismissed.