Appeal No. UKEAT/0549/10/LA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 22 February 2012

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

C	APPELLANT

M LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	No appearance or representation by or on behalf of the Appellant	
For the Respondent
	MR DANIEL DYAL
(of Counsel)
Instructed by:
Messrs Cobbetts LLP Solicitors
1 Whitehall Riverside
Whitehall Road
Leeds
West Yorkshire
LS1 4BN	

SUMMARY
PRACTICE AND PROCEDURE
Striking-out/dismissal
Bias, misconduct and procedural irregularity
Costs

Claimant appeal against strike-out and costs orders.  Bias ground failed on the facts.  Strike out justified on ground that claim was misconceived.  Further, Respondent permitted to raise a new point, that it was entitled to absolute immunity from suit; the claim arose out of other judicial proceedings.  Costs order properly made below.  Limited costs order made in the appeal.

HIS HONOUR JUDGE PETER CLARK
Introduction
1.	I take as my starting point in this long‑running litigation the Judgment that I delivered at the rule 3(10)/inter‑partes preliminary hearing held on 4 May 2011.  A transcript of that Judgment was sent to the parties on 25 May 2011; I shall refer to it as “the Judgment”.  I shall also refer to those parties as the Appellant (the Claimant below) and the Respondent.  This Judgment should be read in conjunction with the Judgment, which set out the procedural history at paragraphs 5‑10.

Procedural background
2.	The rule 3(10) hearing was adjourned for three reasons: first, I wished to hear the parties on whether a Restricted Reporting Order made temporarily by HHJ Serota QC on the paper sift should be continued or revoked; secondly, I asked for Employment Judge Taylor’s written Reasons for her Pre‑Hearing Review (PHR) Judgment dated 20 August 2010, presently under appeal; and thirdly, I enquired as to whether there existed a tape recording of exchanges between Employment Judge Taylor and the Appellant at the PHR, held on 19 August 2010, which formed the basis of a bias complaint made by the Appellant in this appeal.  I also gave the Respondent an opportunity to lodge affidavit evidence on the bias issue.  I then reserved the matter to myself.

3.	Thereafter, Employment Judge Taylor produced written Reasons dated 17 May 2011.  The Respondent’s representative present at the PHR, Sarah Tahamtami, produced an affidavit dated 31 May 2011, and the London South Regional Employment Judge, Judge Hildebrand, wrote to the EAT on 11 May 2011 producing, as it turned out, the relevant tape recording, to which I listened, together with an accurate transcript of the exchanges between Judge Taylor and the Appellant at the PHR after the Judge had made a strike‑out order and at a time when she was seeking to deal with the Respondent’s application for costs and additionally a note from the ET clerk, Ms Zionah Jaldo, who was present on that occasion; a file note dated 18 November 2010 from another member of the Tribunal staff, Michelle Holder, concerning a telephone conversation she had with the Appellant on that day and a letter from the Appellant to the Tribunal dated 9 November 2010.  I directed that all of that material be sent to the parties, and on 17 June 2011 invited them to agree that I should deal with the appeal by way of a full hearing on paper unless either party wished to have an oral hearing.  I there gave an express warning that if either party required an oral hearing unnecessarily, they may be liable to pay the costs of that further hearing.  The parties were given 21 days to respond.

4.	By letter dated 7 July the Respondent’s solicitors replied expressing their agreement to the matter being dealt with on paper.  They also wished to raise a new point not taken below in this appeal (“the immunity point”, to which I shall return).  The Respondent also served its written submissions on the merits of the appeal.

5.	The Appellant finally responded by letter dated 18 July; she said that she believed that I had directed that the matter proceed to an oral full hearing in any event.  I corrected that misunderstanding on 21 July, giving her a further opportunity to consent to the appeal being determined on paper, within seven days.  I reminded her of my earlier costs warning.  She did not respond within that timescale, and so on 4 August I directed that the matter be listed for a full hearing.

6.	On 17 September 2011 the Appellant applied for an indefinite stay of proceedings on medical grounds.  She referred back to injuries allegedly sustained in the earlier assault in January 2007 (Judgment, paragraph 5).  She produced no medical opinion evidence, but merely a copy of a box of medication described as Thyroxin.  In that letter she asserted that she had not recovered sufficiently from the incident back in early 2007 to be able to deal with any post or correspondence.  That application was opposed by the Respondent.  I have considered their solicitor’s letter dated 26 September.  Those solicitors pointed out that the medication was treatment for an under‑active thyroid, not being such as to cause her to be unable to participate in this appeal.  They characterised her application as an attempt to avoid bankruptcy proceedings arising out of the original costs order made in the County Court (Judgment, paragraph 8).  On 30 September the Deputy Registrar refused the Appellant’s stay application.

7.	The appeal was listed for full hearing today by a notice to the parties dated 25 October 2011.  On 31 October the Appellant wrote to the case handler referring to her letter of 17 September applying for a stay and repeating her contention that she was unable to deal with correspondence.  On 11 November the case handler wrote to her about a bundle for the hearing, and on 8 December the Appellant replied repeating her earlier contentions.  I note that was the third time that she had written to say that she could not deal with correspondence; she repeated it for a fourth time in a letter on 17 December in response to the EAT letter of 14 December, and for a fifth on 24 December.  Subsequent correspondence from the EAT dated 30 December was returned by the Appellant with a handwritten note on the envelope saying, “Return to sender - addressee currently unable to deal with post”, although I note that she wrote to the EAT on 9 February 2012 stating that she cannot deal with correspondence due to ill health, and will contact the EAT once her health improves.  I note also from the Respondent’s solicitor’s letter of 16 February that they have received similar responses from the Appellant, particularly in relation to their recent attempts to serve her with a supplementary bundle of documents for the purpose of this appeal hearing.

8.	The Appellant has not attended today.  I invited submissions from Mr Dyal, who again appears on behalf of the Respondent as he did before me on the rule 3(10)/preliminary hearing last year; he asked me to proceed with this appeal hearing.  He pointed out that there must be fairness to both parties, and he prays in aid the history of this matter and earlier litigation between these parties, with which I am now reasonably familiar.  He very properly drew my attention to the leading authorities on the question of adjournment within this jurisdiction, namely Teinaz v London Borough of Wandsworth [2002] IRLR 721 and Andreou v The Lord Chancellor’s Department [2002] IRLR 728.  The distinction, it seems to me, between the present case and those cases is that in the earlier cases, decided in the Court of Appeal, there either was or was not medical evidence available when the decision to proceed was made.  In the present case the Appellant has made no attempt to lodge medical evidence in support of her contention that she is unfit to participate in these appeal proceedings.  She was, I recall, present and represented by counsel pro bono under ELAAS at the hearing before me in this case last year.

9.	In these circumstances there is no evidence before me that she is unfit to conduct this appeal or to attend today.  Furthermore, although she regularly complains that she is unable to deal with correspondence, ironically she raises that complaint on numerous occasions, which I have referred to earlier, by way of her own correspondence, the most recent letter being dated 9 February this year.  In these circumstances it is plain to me that this appeal ought, in justice to the parties, to be determined today.  There is a further aspect, which is that the Respondent submits that the delay in these proceedings is but a tactic in her attempts to put off the effect of bankruptcy proceedings that the Respondent has taken against her in relation to the costs order made in the County Court.  There may well be some force in that submission.  At all events I have proceeded to consider the appeal on its merits.

The appeal
10.	The first point raised by Mr Dyal this morning is a new point that was not taken below, quite simply because it was not recognised by the Respondent’s advocate (not Mr Dyal) who appeared before Judge Taylor at the PHR.  It is that the nature of the victimisation claim raised by the Claimant in her form ET1 in these proceedings is the subject of absolute immunity, and that is a complete answer to the claim regardless of its merits or otherwise, which were considered by Judge Taylor below.  Mr Dyal, again quite properly, recognises that the circumstances in which a new point can be taken for the first time on appeal to this Tribunal are narrowly restricted, and he has referred me to the helpful summary of the principles taken from the cases by HHJ McMullen QC in Secretary of State for Health v Rance [2007] IRLR 665 at paragraph 50.  He submits that the point is a “knock‑out” point, to quote Brooke LJ in the case of Glennie v Independent Magazines UK Ltd [1999] IRLR 729; and that it is a point of particular public importance.  As a matter of public policy, absolute immunity from suit in judicial proceedings is necessary not simply between the parties to the proceedings but in order to protect the integrity of the judicial process.  He adds that no further evidence is necessary, that it is a purely jurisdictional point, and one that disposes of this claim, in his submission, without more, so that the strike-out order was inevitably correct.

11.	I bear in mind that the Appellant is not here to meet the point, but it is right to say that it was first raised by the Respondent in correspondence on 7 July 2011 and is formally raised in their answer to this appeal dated 31 August 2011.  I am satisfied, without hearing, as I say, any submissions from the Appellant, that this is a new point that properly falls within the guiding principles summarised at paragraph 50 of Rance, and I permitted Mr Dyal to take it.

12.	Dealing with the merits of the new point, he has referred me to the observations of the Court of Appeal in Heath v Commissioner of Police for the Metropolis [2005] IRLR 270, and in particular the references to authority in the Judgment of Auld LJ at paragraphs 17 and 18.  He submits that the complaint of victimisation is directed to events occurring first of all in the County Court proceedings between these parties, which were brought by the Claimant, and subsequently in bankruptcy proceedings brought by the Respondent in the High Court arising out of the costs order made by the District Judge in those County Court proceedings.  It therefore seems to me that this point is plainly covered by absolute immunity and applies specifically, among other causes of action, to claims of victimisation, as Underhill P made clear expressly in Parmar v East Leicester Medical Practice [2011] IRLR 641, paragraph 8.  In these circumstances it seems to me that this claim falls within the second category of absolute immunity, which was formulated by Devlin LJ (as he then was) in Lincoln v Daniels [1962] 1 QB 237, 258, which is cited by Judge McMullen in South London and Maudsley NHS Trust v Dathi [2008] IRLR 350, paragraph 17.

13.	It follows, having permitted the Respondent to take this new point, and having considered it on its merits, that the absolute immunity claimed late in the day in these proceedings is a complete answer to this victimisation claim under the Sex Discrimination Act 1975, and thus on that basis the strike‑out order was plainly and unarguably correct.  However, I have heard submissions on the substantive grounds of appeal raised by the Appellant against the order of Employment Judge Taylor, and I deal with those grounds of appeal under three heads.  First, the question of bias or the appearance of bias (grounds 16‑24).   As I indicated earlier, I put over that matter so that enquiries could be made as to whether there was a tape recording of the relevant exchanges after the strike‑out Judgment was given and before costs were dealt with by Judge Taylor at the PHR.  Such a recording was made available to this Tribunal and to the parties, and it is absolutely plain that far from the Employment Judge shouting and screaming at the Appellant, as the Appellant asserted in her affidavit, it was the other way about.  It seems to me that this very experienced Employment Judge maintained her froideur whilst the Appellant increasingly resorted to abuse.  It follows, quite simply, that on the evidence the complaint of the appearance of bias fails utterly, and I reject it.

14.	As to the substantive basis for the PHR strike‑out order (grounds 1‑9), again it seems to me that that order was entirely justified, leaving aside the new absolute immunity point.  Plainly the Employment Judge had power under rule 18 of the ET Rules of Procedure to hear this strike‑out application sitting alone, and I am satisfied she was right to strike out the claim, having of course taken into account the observations of Lords Steyn and Hope in Anyanwu v South Bank Students Union [2001] IRLR 305, as adopted by Maurice Kay LJ in North Glamorgan NHS Trust v Eszias [2007] IRLR 603, at paragraph 31 particularly.  

15.	Strike‑out is a draconic step to take.  It involves dismissing a claim without hearing the evidence, but the provision is there in rule 18(7); in this case, sub‑rule (b).  Plainly this claim of victimisation had no reasonable prospect of success, first because the primary facts were not at all in dispute (compare Anyanwu and Eszias), and secondly the victimisation allegation raised in relation to rule 49 of the ET Rules of Procedure was, as Mr Dyal characterised it, implausible.  Rule 49 provides that in any proceedings appearing to involve allegations of the commission of a sexual offence, the Tribunal, the Employment Judge or the Secretary shall omit from the Register, or delete from the Register or any Judgment, document or record of the proceedings which is available to the public, any identifying matter that is likely to lead members of the public to identify any person affected by or making such an allegation.  I am told that a rule 49 direction was given in earlier proceedings between these parties, although not in the current proceedings.  Be that as it may, it is inconceivable that the Respondent could in some way be in breach of rule 49, which is directed to the Employment Judge or Tribunal or Secretary to omit information from the documents in those Tribunal proceedings.  However, even if such a complaint could be made, it would not apply, it seems to me, to other proceedings; in this case, in the County Court or in the High Court in connection with the Respondent’s bankruptcy proceedings.  For the reasons given by the Employment Judge at paragraphs 10 and 12 of her Reasons, plainly it was right to strike out this claim.

16.	That brings me to the question of costs below.  I have no doubt that this was a hopeless claim, or, in the words of the costs provisions, it had been pursued unreasonably by the Appellant.  The Appellant deprived herself of the opportunity to address the Judge as to her means by her outrageous behaviour during the course of the hearing, which led the Employment Judge, understandably and in my view correctly, asking her to leave the Tribunal room, and in these circumstances the Judge was perfectly entitled to make the costs order that she did given that costs remain an exceptional order in this jurisdiction.

Conclusion
17.	For these reasons this appeal fails and is dismissed.

Appeal costs
18.	Mr Dyal has applied for the Respondent’s costs in the appeal.  He has produced a schedule of costs totalling £13,234.42, which does not appear to include VAT.  I entirely accept that the Appellant’s conduct of these appeal proceedings has been unreasonable, and on the face of it this is a perfectly proper application for costs.  However, I am entitled to take into account her means and have a residual discretion.  As to her means, of course she has supplied no information at all, but I proceed on the basis she is of limited means, subject to ownership of her house, which, I am told, is mortgage‑free.  However, I shall limit my order for costs to the costs of today, which are plainly recoverable by the Respondent in circumstances where the Appellant was given the opportunity to have this matter dealt with on paper and thus avoid the costs of today’s hearing, but she declined to do so in circumstances where her appeal fell apart after the investigation following the hearing before me last year.  The costs of today I assess at £2,785 inclusive of VAT, made up of: solicitor’s attendance, £375; her travel, £235; and counsel’s brief fee of £1,750.  To those fees VAT must be added, giving a total, as I say, of £2,785, and I award those costs against the Appellant.