This document summarizes a court case between Carla Bennett and the London Borough of Southwark regarding Bennett's claims of race and sex discrimination and victimization in her dismissal from her job. The initial tribunal hearing was adjourned part-heard due to insufficient time. At the second hearing, Bennett was absent due to illness and her representative's request for another adjournment was denied. During arguments, the representative implied the tribunal's decisions were due to racial bias. As a result, the initial tribunal recused itself. A new tribunal then struck out Bennett's claims, finding her representative's conduct scandalous. Both sides appealed aspects of the initial and new tribunal's rulings.
Modes of Originating Process - For Revision Purposes OnlyAzrin Hafiz
Modes of Originating Process pursuant to Rules of Court 2012
as per syllabus of LAW547 - Advanced Civil Procedure I
Universiti Teknologi MARA, MALAYSIA
Preliminary matters to be considered before commencing a civil suitIntan Muhammad
Contents :
Cause of Action
Locus Standi
Limitation Period
Jurisdiction of Court & Mode of beginning (in s separate note, namely bidang kuasa sivil mahkamah2 di malaysia)
P/S : I am sharing my personal notes of law-related subjects. Some parts of them are explained in a very informal-relaxed way and mix of languages (BM and English). Secondly, as law revolves every day, there will be outdated parts in my notes. Two ways of handling it.. (1) double check with the latest law and keep it to yourself (2) same with No. 1 coupled with your generosity to share with us, the LinkedIn users (hiks ^_^). Till then, have a nice day!
Modes of Originating Process - For Revision Purposes OnlyAzrin Hafiz
Modes of Originating Process pursuant to Rules of Court 2012
as per syllabus of LAW547 - Advanced Civil Procedure I
Universiti Teknologi MARA, MALAYSIA
Preliminary matters to be considered before commencing a civil suitIntan Muhammad
Contents :
Cause of Action
Locus Standi
Limitation Period
Jurisdiction of Court & Mode of beginning (in s separate note, namely bidang kuasa sivil mahkamah2 di malaysia)
P/S : I am sharing my personal notes of law-related subjects. Some parts of them are explained in a very informal-relaxed way and mix of languages (BM and English). Secondly, as law revolves every day, there will be outdated parts in my notes. Two ways of handling it.. (1) double check with the latest law and keep it to yourself (2) same with No. 1 coupled with your generosity to share with us, the LinkedIn users (hiks ^_^). Till then, have a nice day!
What did you expect? It's a file!
"On the other hand, we denounce with righteous indignation and dislike men who are so beguiled and demoralized by the charms of pleasure of the moment, so blinded by desire, that they cannot foresee the pain and trouble that are bound to ensue; and equal blame belongs to those who fail in their duty through weakness of will, which is the same as saying through shrinking from toil and pain. These cases are perfectly simple and easy to distinguish. In a free hour, when our power of choice is untrammelled and when nothing prevents our being able to do what we like best, every pleasure is to be welcomed and every pain avoided. But in certain circumstances and owing to the claims of duty or the obligations of business it will frequently occur that pleasures have to be repudiated and annoyances accepted. The wise man therefore always holds in these matters to this principle of selection: he rejects pleasures to secure other greater pleasures, or else he endures pains to avoid worse pains."
Christian Schussele Men of ProgressOil on canvas, 1862Coope.docxtroutmanboris
Christian Schussele Men of Progress
Oil on canvas, 1862
Cooper Union, New York, New York
Transfer from the National Gallery of Art; gift of Andrew W. Mellon, 1942
NPG.65.60
Edward Sorel, “People of Progress” 1999, Cooper Union, New York, New York
Syllabus
The clerks of the Department of State of the United States may be called upon to give evidence of transactions in the Department which are not of a confidential character.
The Secretary of State cannot be called upon as a witness to state transactions of a confidential nature which may have occurred in his Department. But he may be called upon to give testimony of circumstances which were not of that character.
Clerks in the Department of State were directed to be sworn, subject to objections to questions upon confidential matters.
Some point of time must be taken when the power of the Executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And the power has been exercised when the last act required from the person possessing the power has been performed. This last act is the signature of the commission.
If the act of livery be necessary to give validity to the commission of an officer, it has been delivered when executed, and given to the Secretary of State for the purpose of being sealed, recorded, and transmitted to the party.
In cases of commissions to public officers, the law orders the Secretary of State to record them. When, therefore, they are signed and sealed, the order for their being recorded is given, and, whether inserted inserted into the book or not, they are recorded.
When the heads of the departments of the Government are the political or confidential officers of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.
The President of the United States, by signing the commission, appointed Mr. Marbury a justice of the peace for the County of Washington, in the District of Columbia, and the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and the appointment conferred on him a legal right to the office for the space of five years. Having this legal right to the office, he has a consequent right to the commission, a refusal to deliver which is a plain violation of that right for which the laws of the country afford him a remedy.
To render a mandamus a proper remedy, the officer to whom it is directed must be one to who.
THE ANISMINIC DOCTRINE OF EXTENDED JURISDICTIONAL ERROR IN NEW SOUTH WALES SU...Dr Ian Ellis-Jones
First Published: (2007) 12 LGLJ 164 - All Rights Reserved. Disclaimer: The information contained in this publication does not constitute legal advice of any kind. The author Ian Ellis-Jones does not guarantee or warrant the current accuracy, legal correctness or up-to-dateness of the information contained in the publication.
Overseer of the Bar - Review of Case and DecisionForTheLoveOfMila
Now also targeting Igor's attorney with harassment for daring to defend his client against Lori's false, malicious claims, Handrahan attempts to have Waxman disbarred.
Communism and the Law Society of BC, from 1950 article in the Advocate 8 advo...Nathaniel Russell
As the LSBC hears eloquent submissions from its Benchers over whether to accept Trinity Wester University as a law school, I am reminded of this old debate from the 1950s when the LSBC refused the application of a known communist, one W.J. Gordon Martin. Justice Bird of the BC Court of Appeal found: "He then declared that he would not follow the Marxian doctrines to the extent of using force if necessary to overthrow constituted authority, that he always felt free to disagree with the application of such doctrines and in lieu to advocate social change by means of education and social organization." This was not good enough.
1. Case No: A1/2001/0441
Neutral Citation Number: [2002] EWCA Civ 223
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT
APPEAL TRIBUNAL (His Honour Judge
Peter Clark).
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21/02/02
Before :
LORD JUSTICE WARD
LORD JUSTICE SEDLEY
and
LORD JUSTICE LONGMORE
- - - - - - - - - - - - - - - - - - - - -
Between :
CARLA BENNETT Appellant
- and -
LONDON BOROUGH OF SOUTHWARK Respondent
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr. Joe Sykes (instructed by Philip Glah & Co.) for the Appellant
Mr. Andrew Burns (instructed by Legal Contract Services) for the Respondent
- - - - - - - - - - - - - - - - - - - - -
Judgment
2. Lord Justice Sedley:
1. These cross-appeals arise out of some regrettable events which occurred in industrial tribunal
proceedings as long ago as January 1997.
a) Events
2. It is not necessary to say more about the initial claim than that Mrs Bennett, who is black,
had worked as a care manager for the London Borough of Southwark (LBS) from 1985 to
September 1994, when she was dismissed. By then she had already, in August 1993,
presented an originating application detailing a prolonged history of what she contended was
race and sex discrimination. To this, following her dismissal, she added a further originating
application adding allegations of victimisation. She gave consolidated particulars of the two
claims, and they were listed for hearing on 1 July 1996 with a 10-day time allocation.
3. At the hearing, chaired by Mr Lamb, the applicant was represented, as 4she had been in the
internal procedures, by Mr Errol Harry, who (relevantly) is black. He is himself a former
employee of LBS and a regular lay representative in employment tribunals. The ten days were
insufficient, and the hearing was adjourned part-heard to 27 January 1997 with an allocation
of 8 more working days. On 27 January the applicant was absent, apparently suffering both
from flu and from a bad back. Mr Harry sought an adjournment, but LBS opposed it and it
was refused. The tribunal took into account the loss of allocated time and resources which
would result from an adjournment; the expense to LBS; the further delay of many months;
and the fact that the applicant had given her evidence and that Mr Harry could cross-examine
the remaining LBS witnesses in her absence.
4. After lunch Mr Harry, who had by now spoken to Mrs Bennett and been told that she was
unhappy with the case proceeding in her absence, reapplied for an adjournment. The tribunal
gave him till next morning, when he renewed the application. He made two remarks in
particular:
“If I were a white barrister I would not be treated in this way.”
“If I were an Oxford-educated white barrister with a plummy voice I
would not be put in this position.”
5. The Tribunal, having retired to consider matters, concluded that they could not continue to
hear a case on race discrimination in which they themselves had now been accused of racism.
They returned and said that this was the case and that in consequence they were discharging
themselves from further participation. They put the matter over to a fresh tribunal, leaving to
that tribunal any application LBS might want to make to have the case struck out, and for
costs.
3. 6. The regional chairman directed relisting before a tribunal chaired by Mr Warren. Its sole
remit was to decide whether to strike out the proceedings on the ground (spelt out in R 13(2)
(e) of the Employment Tribunals Rules of Procedure 1993) that the manner in which the
proceedings had been conducted was scandalous, frivolous or vexatious. The Warren tribunal
sat on 30 May, and on 7 July 1997 promulgated a decision striking out the claims on the
ground that Mr Harry’s conduct of Mrs Bennett’s case before the Lamb tribunal had been
scandalous. They made a costs order for just under £500 against her on the ground of
unreasonable conduct.
7. Mrs Bennett gave notice of appeal against the Warren tribunal’s decision. It was out of time,
but Morison P enlarged time and also, sensibly, gave both sides permission to appeal and
cross-appeal out of time against the Lamb tribunal’s decision which lay at the root of the
Warren tribunal’s decision. The main submissions that thus came before EAT were these: the
applicant submitted that the Lamb tribunal should not have recused itself, at least without
notice; but if that was right, LBS said the Warren tribunal decision should nevertheless stand,
albeit it ought properly to have been made by the Lamb Tribunal. The EAT (Judge Peter
Clarke presiding) elaborated the second issue in this way: “Should the cross-appeal by
Southwark be allowed, and if so, ought we, exercising our powers under s. 35(1)(a) of the
Employment Tribunals Act 1996, to affirm the decisions reached by the Warren tribunal?”
8. The EAT concluded, as I would, that the Lamb tribunal was wrong to recuse itself as and
when it did. I will come to the reasons why in a little more detail later in this judgment. The
critical question was therefore whether the decision to strike out the proceedings, predicated
as it was on the Lamb tribunal’s decision, could stand. The EAT rejected the applicant’s
submission that the right course was for the Lamb tribunal to reconvene and continue: this
Judge Clarke considered to be precluded by the view the Lamb tribunal had arrived at, rightly
or wrongly, as to its own ability to decide the case impartially. The alternatives were that the
case should restart before a fresh tribunal or that the whole claim should be struck out. The
EAT decided that the latter was the right course – in other words that the Warren tribunal
had done the right thing, albeit in the wrong circumstances - and that in the exercise of
EAT’s own power to make any order an employment tribunal (here presumably the Lamb
tribunal) could make the claims should be struck out. This appears to be the course they
took, notwithstanding that in their final paragraph they said that they were dismissing the
appeal against the Warren tribunal’s decision. The EAT did not explain why it needed to
exercise its own power rather than simply uphold the Warren tribunal’s decision, but it must
have been because, in the light of its first conclusion that the Lamb tribunal ought not to have
recused itself, the Warren tribunal had been without authority to adjudicate.
9. With the permission of Longmore LJ Mrs Bennett now appeals against the eventual decision
that her claims should be struck out, and LBS cross-appeals against the EAT’s decision that
the Lamb tribunal was wrong to recuse itself in the first place. At the hearing we granted Mr
Sykes permission to amend Mrs Bennett’s grounds so that they fully reflected the issues now
before the court.
10. Evidence
4. 11. It is relevant to the issues to which it is now necessary to turn that both the applicant and her
representative gave evidence to the Warren tribunal, where Mrs Bennett stood by what Mr
Harry had done. Of Mr Harry’s attitude the tribunal records the following:
“9. Mr Harry admitted using the words and expressions about
which the Lamb Tribunal complained and based its decision. Mr
Harry attempts to excuse his conduct by saying that there was no
formal allegation of racial bias. He says he did not formally indicate to
the Tribunal that he felt his treatment by them was unfair and
discriminatory. He complains that the Tribunal reached the decision
they did without first warning Mr Harry that any repetition of the
conduct which offended them might well result in them taking the
action which eventually they did. Mr Harry said that he had not
intended to imply bias on the part of the Lamb Tribunal. Mr Harry
says that when he referred in the Lamb Tribunal to a white Barrister,
Oxford educated with a “plumy voice” he was being flippant. He told
us that he had been upset that the Lamb Tribunal had not granted his
applications for adjournment.”
12. The EAT, who had affidavits from both of them, said:
“37 Secondly, ought the applicant herself to be fixed with her
representative’s conduct in her absence? She plainly gave him express
instructions to persist in his applications for an adjournment, as
appears from the history set out in the Lamb tribunal’s reasons. So far
as his remarks of less favourable treatment on racial grounds are
concerned, we first accept Mr. Burns’ submission that the structure of
rule 13(2)(e) plainly envisages that a case may be struck out where the
conduct of proceedings on behalf of a party is scandalous or
vexatious. We think that it is sufficient that the party has instructed
the representative to conduct the case on her behalf. However
secondly, on the particular facts of this case, we are entitled to take
into account the contents of an affidavit sworn by the applicant in
these appeal proceedings on 11 March 1998, a time when she was
represented not by Mr Harry but by solicitors. We think the flavour is
caught by these extracts from paragraphs 8 – 9 of that affidavit:
“I can only sum up that I felt that the tribunal both LAMB and
WARREN were abusing their power and authority. They were very
bulling (sic) to my representative and very polite to the White
Respondent Counsel Mr. Burns.
I am fortified that the Chairman LAMB and WARREN were biased
and acted improperly. I do not believe that they are fit and proper
persons to be Chairmen presiding in cases involving race and sex
Discrimination which requires inter alia ‘trust, honesty, integrity and
fairly in dispensing with justice’ (sic).
5. 38. It is clear to us from that evidence, which we shall not permit
Mr Sykes to “withdraw” as he asked us to do, that the applicant
herself wholeheartedly endorsed and ratified the remarks made by Mr
Harry to the Lamb tribunal.”
13. Law
14. Rule 13 of the Employment Tribunals Rules annexed as Schedule 1 to the Employment
Tribunals (Constitution etc.) Regulations 1993 provides:
(2) A tribunal may –
…………
(e) subject to paragraph (3), at any stage of the proceedings, order to
be struck out any originating application…on the grounds that the
manner in which the proceedings have been conducted by or on behalf
of the applicant … has been scandalous, frivolous or vexatious;
………….
(3) Before making an order under sub-paragraph … (e) … of
paragraph (2) the tribunal shall send notice to the party against whom
it is proposed that the order should be made giving him an opportunity
to show cause why the order should not be made; but this paragraph
shall not be taken to require the tribunal to send such notice to that
party if the party has been given an opportunity to show cause orally
why the order should not be made.
15. Section 35(1) of the Employment Tribunals Act 1996, reproducing almost verbatim
the provision previously contained in the Employment Protection (Consolidation) Act 1978,
Sch. 11, paragraph 21, provides:
For the purpose of disposing of an appeal, the Appeal Tribunal may –
(a) exercise any of the powers of the body or officer from whom the
appeal was brought, or
(b) remit the case to that body or officer.
6. Issues
16. The question for this court is whether the dismissal of the applicant’s claims in the
circumstances in which it occurred was a proper use of the power to strike out proceedings
which have been conducted in a scandalous manner. To answer the question it is necessary to
resolve the following issues:
i) Ought the Lamb tribunal to have recused itself when it did, or should it have afforded
Mr Harry an opportunity to explain or withdraw his remarks?
ii) Did Mr Harry’s behaviour amount to a scandalous manner of conducting the
applicant’s case?
iii) If so, was striking out a proportionate response to it?
iv) If so, was it within the EAT’s powers to strike the claims out unless it was a foregone
conclusion that the Lamb tribunal, properly directed, would have done so?
17. I omit from this list the question whether there was sufficient compliance by the
Warren tribunal and the EAT with the requirement of Rule 13(3) for notice. Although Mr
Sykes, for Mrs Bennett, has tried to suggest that there was no or inadequate notice that the
former was thinking of striking out the claims and that the latter was thinking of substituting
its own decision for that of the former, it is evident that any failure to appreciate what the
Warren tribunal was about was the product of Mr Harry’s obtuseness, and that an advocate
in the EAT (where the same counsel appeared as before us) should have been alive to the
possibility of a s.35 order if the decision fell out in a particular way.
Discussion
18. It is necessary first to be clear about what Mr Harry did wrong. Fearlessness, which is rightly
regarded as a virtue in professional advocates, can occasionally extend to standing up to
courts in difficult confrontations. The advocate will not always be right, but so long as he or
she remains civil, submissions which are not only strong but unpalatable may be made if the
advocate’s duty or judgment requires it. A submission that a tribunal should recuse itself (to
adopt the handy American term) may come into this class, and no tribunal should be offended
if it is properly made. What is unacceptable is making such submissions gratuitously or
deviously – for example in order to secure an adjournment which cannot otherwise be got.
So is making a submission, especially one of this kind, in an offensive manner. Our system of
justice depends far more than is often realised (at least by people who have not seen some
other countries’ systems in operation) on a level of courtesy and formality which ensure that
hard things can be said without giving insult or offence. I see no reason in this respect to
expect a lesser standard of unqualified representatives than is expected of professional
lawyers.
7. 19. Mr Harry was perfectly entitled to make the application he did for an adjournment, and to
renew it after taking instructions. I do not think even the second renewal can rightly be called
vexatious. He was most certainly not entitled to back it up by setting out to create a situation
in which the tribunal would have to recuse itself; but while his conduct was such as to push
them in that direction, I do not see any evidence which would allow us to infer that it was his
aim to do so, and Mr Burns (who was there at the time as counsel for LBS) has very
fairmindedly not suggested the contrary. Mr Harry’s transgression was to resort to insult.
The insult was not his choice of language to characterise the typical barrister: advocacy
would be a dull affair if vivid phraseology were not tolerated, and the plummy-voiced white
Oxford-educated barrister is not a bad stereotype as stereotypes go (though “Oxford” should
probably be “Oxbridge”: see my chapter ‘The future of advocacy’ in Discriminating
Lawyers, ed. P.Thomas, 2000). It was his allegation that the tribunal was treating his
application unfavourably because he was not white and because he was not a barrister. Both
were serious things to suggest in any tribunal, but especially one dealing with race
discrimination cases and required to give a full and fair hearing to all advocates, qualified or
not.
20. Here it is necessary to step with great care. If a situation were ever to arise in which it could
responsibly and relevantly be said that a tribunal or court was treating black and white
advocates differently, there would be no impropriety in a measured submission to that effect.
In the present case there was no basis whatever for such a submission to the Lamb tribunal
and Mr Harry, given the opportunity, has not suggested that there was. He has sought,
rather, to explain his remarks as an unfortunate overstatement of his sense that as a lay
representative he was not making the headway that a professional advocate would make.
21. In this light I turn to the issues.
A. Ought the Lamb tribunal to have recused itself?
22. I have said that I agree with the EAT that the Lamb tribunal should not have recused itself as
and when it did. Mr Burns on LBS’s cross-appeal contends that it was right to do so because
once a tribunal has formed the view that it cannot continue to handle a case with impartiality
nothing the parties say can enable it to resume with an impartial mind. This assumes that the
tribunal has reached the point at which it can properly form such a view. Mr Burns submits
that this no longer matters: what’s done is done. I respectfully disagree. Undoubtedly there
are situations in which the emergence, for example, of an unanticipated financial interest
means that the tribunal has already reached the point of no return whatever the parties say.
But where the reason is an advocate’s aberrant and offensive behaviour, as it was here, there
are numerous reasons not to abort the hearing until a serious endeavour has been made to
defuse the situation, and more than one way to do so.
23. One way (and perhaps the best way in the case of a single outburst) is to ignore it. Another, if
having retired the tribunal feel as this tribunal did, is to point out to the advocate the potential
consequences of his behaviour and invite him, if he cannot justify his remarks, to withdraw
them. If he withdraws them, there is no reason in the ordinary way why the case cannot go
on.
24. Even if he does not withdraw, and assuming of course that no proper justification is offered,
the tribunal may still need to consider whether, given the potential injustice to the other side
8. and the public expense which recusing themselves will bring, they cannot, perhaps after a
break, continue with the hearing with unclouded minds. Courts and tribunals do need to have
broad backs, especially in a time when some litigants and their representatives are well aware
that to provoke actual or ostensible bias against themselves can achieve what an application
for adjournment cannot. Courts and tribunals must be careful to resist such manipulation, not
only where it is plainly intentional but equally where the effect of what is said to them,
however blind the speaker is to its consequences, will be indistinguishable from the effect of
manipulation. In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, 479, a
specially constituted Court of Appeal (Lord Bingham CJ, Lord Woolf MR and Sir Richard
Scott V-C) adopted a passage from the judgment of the Constitutional Court of South Africa
in President, RSA v SA Rugby Football Union [1999] (7) BCLR (CC) 725, 753, which
included this:
“The reasonableness of the apprehension [of bias] must be assessed in
the light of the oath of office taken by the judges to administer justice
without fear or favour; and their ability to carry out that oath by
reason of their training and experience. It must be assumed that they
can disabuse their minds of any irrelevant personal beliefs or
predispositions. They must take into account the fact that they have a
duty to sit in any case in which they are not obliged to recuse
themselves. At the same time it must never be forgotten that an
impartial judge is a fundamental prerequisite for a fair trial and a
judicial officer should not hesitate to recuse herself or himself if there
are reasonable grounds on the part of a litigant for apprehending that
the judicial officer, for whatever reasons, was not or will not be
impartial.”
25. If the advocate persists in defying the tribunal without arguable justification, the tribunal can
invite the Attorney General to consider proceeding against him for contempt of court. In the
light of the decision of this court in Bache v Essex County Council [2000] IRLR 251,
however, it is not open to the tribunal simply to refuse to hear the advocate any further, and
this may in turn have a bearing on whether misconduct in which the advocate threatens to
persist amounts in a given case to the scandalous conduct of proceedings.
26. But this case is not in that league. While Mr Harry’s explanation of his conduct leaves a great
deal to be desired (and while Mrs Bennett’s expressed attitude to it makes the worst that
could be made of the situation he created) it suggests pretty clearly that if he had been
confronted by the Lamb tribunal with the impending consequences of his intemperate
outburst he would, not too graciously perhaps, have climbed down. As the EAT put it:
“Before discontinuing the proceedings [the tribunal] ought to have required Mr Harry to
affirm or withdraw his accusations.” It is possible, of course, that he would have refused to
do either thing – but there was only one way to find out. In other words a point had not been
reached, and was not necessarily going to be reached, at which the entire lengthy hearing had
to be aborted. I think that the Lamb tribunal, although its motives command respect,
retreated prematurely from the field.
B. Was the case conducted in a scandalous manner?
9. 27. While the issue of scandalous conduct of proceedings does not depend on the tribunal’s self-
recusal, it is necessary to be clear what conduct we are looking at. Is it simply Mr Harry’s
conduct of the case up to the point when the Lamb tribunal recused itself? Is it that conduct
plus his conduct and evidence before the Warren tribunal and possibly too before the EAT?
Is it his conduct of the case as it would or might have been had he been given the chance to
retract? I do not see, if I am right in my conclusion that he should have been given that
chance, how it is permissible to judge his conduct of the case without regard to what might
have happened had the tribunal, as it should have done, gone the next mile.
28. If that is done, the basis of the Warren tribunal’s decision falls away. Its conclusions include
these passages:
“In this case the admitted conduct of Mr Harry was repeated and
continued over a period of time, and was in our view on any objective
view quite scandalous. … This tribunal, understandably in our view,
were profoundly offended by the remarks which were made and felt
that they were no longer able to carry out their function judicially. The
Tribunal must be the judge of its own bias.”
Instead we are looking at conduct which was certainly improper but which was reversible and
did not therefore have as its implicit consequence the aborting of the entire proceedings.
This, I think, was recognised by the EAT and is the reason why it turned to the exercise of its
own powers, which I will come to under (d) below.
29. But the predicate of the use of the strike-out power by either the Warren tribunal or the EAT
was not simply that Mr Harry’s own conduct should be able to be characterised as
scandalous: it was that the manner in which he had been conducting the proceedings on the
applicant’s behalf should be able to be so characterised. This requires attention to be paid to
three distinct things: the way in which the proceedings (which had gone on for 10 or 11 days)
had been conducted; how far it is right to attribute any misconduct of the proceedings to the
applicant herself; and the significance in this context of the epithet ‘scandalous’.
30. We have not heard full argument on these questions, and they do not feature as discrete
points in either the grounds of appeal or the grounds of cross-appeal; but they cannot be
entirely ignored on an appeal such as this. In the light of such submissions as have been
made, I venture the following views on them.
31. First, the manner in which a party’s proceedings are conducted is not the same thing as,
though it may well be evidenced by, the behaviour of the party’s representative. 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
10. 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.
32. 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 their evaluation which the EAT 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
OED 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 Daniel’s entry in
Byrne’s Dictionary of English Law cited in his judgment by Ward LJ. 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
CJ in R v Mildenhall Magistrates Court, ex parte Forest Heath DC (The Times, 16 May
1997).
C. Was striking out a proportionate response?
33. 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 commonsense axiom requiring no resort to the article 6 of the
European Convention on Human Rights. But – evidently because it was not argued – this
requirement was not addressed at all by either the Warren tribunal or the EAT.
34. 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 EAT.
D. Can the EAT substitute its own decision to strike out?
35. There remains the important question of the correct use of s.35(1) of the Employment
Tribunals Act 1996. This does not feature in the notice of appeal or skeleton argument, but
with the court’s permission, and assisted by Mr Burns’ readiness to take short notice of the
11. point, Mr Sykes has argued it. The point in any event goes to the EAT’s jurisdiction and so
cannot be sidestepped.
36. In reliance on this court’s decision in Morgan v Electrolux Ltd [1991] IRLR 89 Mr Sykes
submits that the EAT can only use the power to substitute its own decision where it is
incontestably the decision which, properly directed in law, the lower tribunal would have
reached. At paragraph 11(5) of the report Balcombe LJ, giving the judgment of the court,
quoted and adopted what Sir John Donaldson MR had said in O’Kelly v Trusthouse Forte
plc [1983] ICR 369:
“The Employment Appeal Tribunal can correct errors of law and
substitute its own decision in so far as the Industrial Tribunal must, but
for the error of law, have reached such a decision. But if it is an open
question how the Industrial Tribunal would have decided the matter if
it had directed itself correctly, the Appeal Tribunal can only remit the
case for further consideration.”
Although there is no reference in Morgan to the statutory power of substitution by the appeal
tribunal (despite the potentially embarrassing fact that, as I see from the report, it was argued
by Mr Patrick Elias QC, as he then was, and myself), the report of O’Kelly (which I see was
argued by Mr Alexander Irvine QC, as he then was, and myself) shows that the passage of
the Master of the Rolls’ judgment cited by Balcombe LJ was followed by a reference to
paragraph 21 of Sch.11 to the 1978 Act and by this comment on it:
“…I do not read that paragraph as doing more than authorising the
appeal tribunal to record a decision which, on the facts found, it could
have directed the industrial tribunal to record.”
37. Mr Burns submits that the principle is confined to matters of judgment, such as the fairness of
a dismissal, on which the first-instance tribunal cannot be second-guessed, and that it does
not embrace cases where the appeal tribunal, once it has got the law straight, is as well placed
as the first-instance tribunal to evaluate the facts that have been found. The argument is
attractive, but it is foreclosed by the clear and comprehensive construction of the provision in
the earlier decisions of this court.
38. Once it is established that striking out was not a foregone conclusion, it follows on authority
that it was not open to the EAT to substitute its own decision for that of the Warren tribunal,
any more than it was possible in the circumstances to uphold it.
Conclusions
39. The result is both inexorable and deeply depressing. This protracted case must start again.
After 10 days’ hearing in mid-1996, the Lamb tribunal mistakenly aborted the proceedings in
early 1997. The Warren tribunal later that year, correctly (since it had no appellate role)
treating the Lamb tribunal’s decision as properly taken, struck out the proceedings on a basis
12. which the EAT later, and rightly, held to be false, and did so by reasoning which I would also
hold to have been intrinsically unsound. The EAT, which mainly because of its own
overcrowded lists but also because of the complications of this particular case took from
August 1997 to January 2001 to decide the appeal and cross-appeal, correctly identified the
Lamb tribunal’s error but adopted the Warren tribunal’s errors of reasoning and went on to
make an order substituting their own decision for that of the employment tribunal which they
had no power to make. The entire house of cards has now collapsed. There is no way in
which, even if it could be reconstituted, the Lamb tribunal could be expected to resume the
hearing after a gap of five years. The proceedings stand where they stood on the eve of 1 July
1996, and directions must be given for their disposal. The tribunal hearing them must do
what it can in the face of a colossal lapse of time to do justice between the parties on such
reliable evidence as can now be adduced.
40. While it will be no part of the new tribunal’s task to allocate blame for the lapse of time, I do
not want to part with this case without recording that in my judgment the blame for what has
happened rests entirely with Mr Harry. (He was not separately represented before us, but Mr
Sykes, who has taken over his role, has been able to say whatever could be said in his
defence.) It was he who undertook the presentation of the applicant’s case, he who let her
down by responding insultingly to the perfectly legitimate refusal of an adjournment, and he
therefore who provoked the reactive misjudgment which has led to this whole sorry sequence
of events and the expenditure of heaven knows how much public money on sorting it out.
41. There are plenty of lay representatives who afford real help to their clients and to
employment tribunals, sometimes with the advantage of more and better practical knowledge
than lawyers possess. But a further look may need to be taken at the power (or impotence as
it at present seems to be) of employment tribunals to shut out representatives whose
behaviour jeopardises both their own clients’ cases and the proper functioning of this
important segment of our system of justice. It is not satisfactory that the only sanction is to
wait until the representative crosses the high threshold set by Rule 13(2)(e) and then to
penalise not him but his client by striking out the case.
37. The costs order has not been separately debated. It must fall with the striking out order. I
would allow the appeal, set aside the order striking out the claims and direct a fresh hearing
of the originating applications.
Lord Justice Longmore:
38. I agree with Sedley LJ. for the reasons that he gives.
Lord Justice Ward :
42. This case fills me with despair. First there is the inexcusable petulance displayed by Mr
Harry, the appellant’s legally untrained advocate. Secondly there is the unfortunate
capitulation by the Lamb Tribunal to his insolence. Thirdly there is the five year delay
between the Lamb decision and this judgment. Finally there is the horrific prospect of re-
hearing events some already over a decade old. Not without serious misgiving, I agree with
my Lords in the unhappy conclusion that this case must start all over again.
13. The Lamb Decision.
43. The question may be asked whether the Lamb Tribunal should have withdrawn as it did.
There appear to me, however, to be two quite separate issues which arise. The first is
whether the Tribunal should have allowed themselves to be driven to the conclusion, as they
expressed it in paragraph 15 of their judgment, that:-
“Each member of the Tribunal considered that the allegation was so
injurious and offensive that each of us felt it impossible to continue to
preside over the case with the impartiality and equanimity necessary to
the judicial task involved.”
44. The second issue is whether, having reached that conclusion they had to withdraw.
45. Both the Employment Tribunal and Sedley L.J. have criticised the Lamb Tribunal for over-
reacting to Mr Harry’s abuse. The criticisms are well founded. In the Employment Appeal
Tribunal’s view:-
“... it is the duty of any judicial body to approach its task with
impartiality and equanimity, not to abdicate its responsibility. Where
its authority is challenged it must deal with that challenge itself.”
46. Judicial duty is to be performed both without fear as well as without favour. The Tribunal
did not act fearlessly when they capitulated to the inexcusable petulance and insolence
displayed by Mr Harry. They were wrong not to listen to Mr Harry’s diatribe with
phlegmatic fortitude, retiring, if necessary, to compose themselves and to cool the advocate’s
ardour, and then calmly continuing. Instead they allowed invective to infect them with
prejudice. In getting on their high horse they fell off the judgment seat. I do not deny that it
is thoroughly unpleasant and uncomfortable to be accused of bias. It is, sadly, not an
uncommon charge. It is, on the contrary, a worryingly increasing challenge to the court’s
authority at all levels. Judges, member of Tribunals, magistrates, all have to rise above such
a challenge because all must be confident in their ability to judge impartially.
47. I agree, therefore, that the Tribunal was quite wrong to march in and announce their
withdrawal without giving the parties any opportunity to respond. I agree with the
Employment Appeal Tribunal’s observations – reinforced by Sedley L.J. – that:-
“In the present case we have no doubt that the proper course was for
the Tribunal to return from its deliberations and inform the parties of
its collective view of Mr Harry’s remarks. Before discontinuing the
proceedings it ought to have required Mr Harry to affirm or withdraw
his accusations. If he continued to press his claim of racial bias it
would then be for the Tribunal, either of its own motion or, more
likely, on the basis of an application which was in fact made by the
respondent after discontinuance had been ordered and thus not
entertained by the Lamb Tribunal, to consider using its powers to
order a strike out under Rule 13(2)(e) (there being no power in the
Tribunal to punish a party or a representative for contempt) and to
give appropriate directions for that purpose. Alternatively if he
withdrew his remarks, it would then have been open to the Tribunal to
14. continue the hearing, with or without an adjournment occasioned by
the absence of the applicant.”
48. The further alternative was always open to them simply to continue whether or not
with a further adjournment to allow equanimity to be restored. I am quite satisfied they
ought not to have reacted as they did.
49. That said, could they properly have continued to hear this case having decided in the
seclusion of their retiring room that they were incapable of hearing it impartially? To that
question there is inevitably only one answer. They could not possibly have continued. They
were honest enough to admit that they had lost their impartiality. From that moment
onwards they were infected with actual bias. To have continued would have been to deny
justice being done.
50. In my judgment the order they made that the hearing of the matter by the Tribunal be
discontinued and that it be reheard before a differently constituted Tribunal subject to such
other directions as may be made by the regional chairman was, in the unhappy circumstances,
the right order. That it was made for the wrong reasons does not matter. The appeal lies
against the order not against the reasons for it. The appeal against the order made by the
Lamb Tribunal should, in my judgment, have been dismissed.
The Warren Tribunal’s decision.
51. The regional chairman directed that the matter be listed for hearing to determine whether or
not the originating application should be struck out under the power conferred by Rule 13(2)
(e) of the Industrial Tribunal Rules of Procedure 1993 on the grounds that the manner in
which the proceedings had been conducted by or on behalf of the applicant had been
scandalous, frivolous and/or vexatious. Although that decision has come under attack from
Mr Sykes, there was no appeal against it and so the decision stands. I am quite satisfied it
was within his power to make it. I am less satisfied that he was right to do so. It does not
now matter.
52. The issue was determined by the Warren Tribunal who struck out the originating application.
That order was appealed to the Employment Appeal Tribunal but they decided the matter for
themselves and had, therefore, to dismiss the appeal against the Warren Tribunal decision.
Were the Employment Appeal Tribunal right to do so?
53. In my judgment the Employment Appeal Tribunal were wrong for two reasons. The first is,
as I have explained, they ought to have dismissed the appeal against the Lamb Tribunal
decision. The second is, for reasons explained by Sedley L.J., with which I agree, they were
not, in any event, entitled to substitute their own decision to strike out. In my judgment, the
determinative question is not whether or not the Warren Tribunal were correct to strike out
the originating application as they did.
54. The Warren Tribunal were in an impossible position. They had to do their best to deal with
the application in the way it came before them in the judgment of the Employment Appeal
Tribunal, my Lords and me; the matter should never have got to them at all had the Lamb
15. Tribunal not over-reacted and had it taken the alternative steps that were open to it. The
problem created for the Warren Tribunal was that the Warren Tribunal had to decide the
matter without being able to know what would have happened if things had been done
properly. Who knows what would have happened? Before the Warren Tribunal Mr Harry
complained that the Lamb Tribunal had reached the decision they did without first warning
him that any repetition of the conduct which offended them might well result in their taking
the action which eventually they did. He said he had not intended to imply bias. He said he
had been upset by the refusal to grant the adjournment. One cannot but wonder whether a
few soothing words from Mr Lamb would not have defused this explosive moment in a way
which would have allowed Mr Harry to pull himself together, and behave with sufficient
decorum to allow the hearing to continue.
55. Sharply defined the question for the Warren Tribunal was, as they posed it, whether or not
“the manner in which these proceedings had been conducted by and on behalf of the applicant
has been scandalous, frivolous and/or vexatious”.
56. There was no express finding by the Warren Tribunal of frivolous or vexatious conduct. The
Employment Appeal Tribunal found that his conduct was scandalous and “coming on top of
his repeated applications for an adjournment ... also vexatious.” In my judgment they were
wrong to find that this conduct was vexatious. The fact that he was making an application
for an adjournment for the third time on the same grounds was certainly irritating but for my
part I would not be able to conclude that it was vexatious within the meaning these words
have. It may have been totally misconceived but I doubt if it was done purely to cause
annoyance so as to amount to an abuse of process.
57. The Warren Tribunal found:-
“In this case the admitted conduct of Mr Harry was repeated and
continued over a period of time, and was in our view on any objective
view, quite scandalous. The words which Mr Harry used were clearly
intended to indicate to the Tribunal that Mr Harry had formed the
view that the decisions which the Tribunal made were biased and
influenced by the applicant’s and his race, they were discriminatory.”
58. The Employment Appeal Tribunal in its view of the matter said:-
“In our view Mr Harry, in making an unwarranted charge of racial bias
was thereby attempting to interfere with the due administration of
justice. Indeed, he effectively succeeded, since the Lamb Tribunal
then rose to the bait and ordered discontinuance with the prejudice
which that course may cause to the respondent. We find that his
conduct was scandalous ...”
59. The first question is to understand what is meant by “scandalous”. The best, indeed only,
definition I have chanced upon was that given by Daniel, the great master of and author of
the seminal work Chancery Practice. He is recorded in Byrne’s Dictionary of English Law,
1923, as having said with reference to pleading that:-
“Scandalous consists in the allegation of anything which is
unbecoming the dignity of the court to know, or is contrary to good
16. manners, or which charges some person with a crime not necessary to
be shown in the cause: to which may be added that any unnecessary
allegation, bearing cruelly upon the moral character of an individual, is
also scandalous.”
60. In my judgment Mr Harry’s tirade on the morning of 28th
January when he accused the
Tribunal of racial bias was scandalous conduct. That incident must, however, be viewed in
isolation. There was nothing scandalous about his two previous applications to adjourn and
whatever degree of incompetence he showed in the management of the case on the
applicant’s behalf, there is no hint or suggestion of anything scandalous in the way he had
represented her until that moment. In aggregating what happened on the two earlier
applications for adjournment with what happened on the morning of 28th
January, both the
Warren Tribunal and the Employment Appeal Tribunal were, in my judgment, in error.
61. To say, however, that he behaved scandalously on that one occasion does not of itself answer
whether “the manner in which the proceedings had been conducted by or on behalf of the
applicant”, the words of Regulation 13(2)(e), was scandalous. That answer depends upon
how the proceedings had been conducted viewed overall as well as what effect isolated
conduct might have on the future conduct of the proceedings. This offensive outburst came
on the 12th
day of the hearing. There is, so far as we know, nothing untoward about the
previous 11 days although there may be good reason to believe Mr Harry’s lack of expertise
may have contributed to the length these proceedings had taken. The point is that there was
nothing worthy of complaint of a serious nature. In the light of the criticisms we have all
made of the Lamb Tribunal, the tainting effect of this isolated incident could, and should with
tact, have been dissolved so that it would not have coloured the proceedings as a whole. For
my part I cannot conclude that the proceedings had been conducted in a scandalous manner.
62. I agree with my Lord’s view that the striking out of the proceedings had to be a
proportionate response. Striking out was disproportionate to the necessary metaphorical
shrugging of the shoulders and getting on with it in order not to jeopardise the applicant’s
claim and ten days of the hearing.
Conclusion.
63. I end where I began. This is a deeply unsatisfactory result. I am acutely conscious that to
order a rehearing may cause considerable difficulties for the local authority whose witnesses
are not all available. In balancing the injustice to them against the injustice to the appellant I
come down in the appellant’s favour because in the sad events which have happened, she will
not have had a fair trial of her complaint. I agree with my Lord that the authorities might
care to review what measures if any be given to Tribunals to be able to exercise some
discipline over those who appear before them. The value of having lay representatives is
undoubted but the right of audience is predicated upon proper behaviour and Mr Harry’s
conduct fell well below the minimum standard that could be expected. It gives me no
satisfaction to agree, albeit for some slightly different reasons, that the appeal should be
allowed and the matter remitted to another Tribunal for rehearing.
64.
17. 65. Order: Appeal allowed and Respondent’s cross-appeal dismissed; originating applications to
be remitted to the employment Tribunal to be heard before a freshly constituted tribunal; the
Respondent to pay the appellant’s costs of appeal and cross-appeal agreed at £858.63.
66. (Order does not form part of approved judgment)