Neutral Citation Number: [2009] EWCA Civ 96
Case No: A2/2008/0661/PTA+A
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE McMULLEN QC
UKEAT/0176/07/ZT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/02/2009
Before :

LORD JUSTICE WARD
LORD JUSTICE RIMER
and
LORD JUSTICE ELIAS
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Between :

	ABEGAZE	Appellant	
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	SHREWSBURY COLLEGE OF ARTS & TECHNOLOGY	Respondent	
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 (Transcript of the Handed Down Judgment of
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MR MICHAEL DUGGAN (instructed by J R JONES) for the Appellant
MR ANDREW McGRATH (instructed by SHROPSHIRE COUNTY COUNCIL LEGAL DIVISION) for the Respondent

Hearing date: 9TH FEBRUARY 2009
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Judgment
LORD JUSTICE ELIAS :

1.	This is a curious and unusual case. The claimant (as I shall continue to call him, although he is the appellant before us) succeeded in his claim that he had been discriminated on racial grounds by the respondent. The Employment Tribunal found by a majority that the respondent Council had failed to appoint him as a lecturer in Electrical/Electronic Engineering and that his race had been a factor in that decision. That decision was given on 20 November 2000 and it was not appealed. Some six years later, on the 15 November 2006, the claim - which by then of course related only to remedy - was dismissed on the grounds that the claimant had not actively pursued it, and because the employment judge considered that it was no longer possible to have a fair hearing of the proceedings. An appeal to the Employment Appeal Tribunal (His Honour Judge McMullen QC presiding) was unsuccessful. The claimant now appeals that decision.
The background.
2.	A detailed analysis of the history of this litigation would be very lengthy.  I will concentrate on the essential features.  Once liability had been determined, a remedies hearing was fixed. However, the claimant was not well and the hearing could not take place. On 13 March 2003 the Tribunal wrote to the parties. The employment judge indicated that it was not in the interests of either party that the remedies hearing should be delayed further. He listed the case to be heard not before 1 July 2003. The purpose of that was to give the claimant at least three calendar months in which he could recover his health and prepare for the hearing.
3.	The claimant had obtained a number of medical reports, and also a report from an employment expert concerning the prospects of his obtaining fresh employment. The respondent, not unnaturally, wished to have the opportunity to have their consultant examine the claimant. He, however, objected to this. Ostensibly he indicated that he had no objection to being examined, but in practice, he continually placed difficulties in the way and even suggested that by wanting to have him examined, the respondent was perverting the course of justice.
4.	A remedies hearing was convened for 13 October but it had to be adjourned. There was little option other than to do that because at least one of the reports was only produced to the respondent on the day of the hearing itself, and furthermore the claimant had not by then been examined by the respondent’s doctors. It was recorded in the decision of 13 October that the claimant had confirmed his willingness to attend a medical appointment arranged by the respondent anywhere in the UK. 
5.	The respondent sought to arrange a meeting with a consultant psychiatrist, but the claimant failed to co-operate.  Indeed on 23 October 2003 he applied to strike out the respondent on the grounds that their conduct in relation to requiring him to be examined was scandalous. The proposed medical appointment with the psychiatrist had to be cancelled.
6.	The employment judge considered the application by the claimant to strike out the respondents. Hardly surprisingly, he rejected that application on 3 December 2004.  Instead, he stated that since the claimant had declined to co-operate with the respondent, he had decided to stay all further matters in the claim. He subsequently issued a formal order to that effect. 
7.	The claimant sought to appeal the refusal to strike out to the Employment Appeal Tribunal, but the appeal was unsuccessful. Meanwhile he continued to represent that he was willing to co-operate in an examination by the respondent’s doctor, although his actions belied his words.
8.	On 6 May 2005 the respondent wrote to the claimant. They noted that the Court of Appeal had by then refused him leave to appeal against the Employment Appeal Tribunal’s rejection of his appeal relating to his strike out application. They asked the claimant to let them know when he would be prepared to attend an appointment with their psychiatrist. Again, he did not co-operate.
9.	On the 17 August 2005 the respondents requested a case management review.  On 24 August the employment judge wrote to the parties indicating that he had decided to issue a Notice to Show Cause why the case should not be struck out.  
10.	 At this stage the claimant obtained the assistance of the Commission for Racial Equality. They sent a detailed submission on his behalf on 29 October 2005, in which they noted that:
“The claimant now feels capable of co-operating with all parties and wishes to proceed with the remedies hearing of this matter as quickly as possible.”

11.	They observed that it was entirely fair that the respondent should be able to examine him and that they would not have a fair hearing without being afforded that opportunity. The respondent, notwithstanding the relatively positive tone of that letter, applied to the Tribunal on the 25 November 2005 asking the Tribunal to consider striking out the claimant’s claim.
12.	Thereafter there was some correspondence between the Tribunal, the respondent and the Commission for Racial Equality who were still at that stage acting for the claimant. Subsequently, however, the Commission ceased to act for him because they found that they were professionally embarrassed.
13.	After various delays, a pre-hearing review to consider the application was fixed for 5/6 September 2006. That was postponed at the request of the respondent but a fresh Notice of Hearing was then fixed for 2/3 November. The claimant sought to have this hearing postponed by making numerous applications, but the employment judge refused to do so. The employment judge indicated that he might be prepared to do so if the doctor who had provided a note saying that the claimant could not attend the hearing would answer certain particular questions and would be willing to have his answers communicated to the respondent’s lawyers. No such undertaking was given and the hearing went ahead on the due date.
The relevant law.
14.	The respondent was seeking to have the claim dismissed under three sub-paragraphs of Rule 18(7) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The three sub-paragraphs are as follows:
“… a chairman or tribunal may make a judgment or order –
… (c) striking out any claim or response (or part of one) on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;
  (d) striking out a claim which has not been actively pursued;
..(f) striking out a claim where the chairman or tribunal considers that it is no longer possible to have a fair hearing in those proceedings.”

15.	The relevant legal principles applicable to this case are not in dispute.  In the case of a strike out application brought under paragraph (c), it is well established that before a claim can be struck out, it is necessary to establish that the conduct complained of was scandalous, unreasonable or vexatious conduct in the proceedings; that the result of that conduct was that there could not be a fair trial; and that the imposition of the strike out sanction was proportionate.  If some lesser sanction is appropriate and consistent with a fair trial, then the strike out should not be employed. 
16.	These principles can be derived from Blockbuster Entertainments Limited v James [2006] IRLR 630 (CA); Arrow Nominees v Blackledge [2001] BCC 591 (CA); and Bolch v Chipman [2004] IRLR 140 (EAT).  
17.	The strike out for failing actively to pursue the case raises some different considerations. In Evans Executors v Metropolitan Police Authority [1993] ICR 151 the Court of Appeal held that the general approach should be akin to that which the House of Lords in Birkett v James [1978] AC 297 considered was appropriate when looking at the question whether at common law a case should be struck out for want of prosecution. (The position in civil actions has altered since the advent of the Civil Procedure Rules). That requires that there should either be intentional or contumelious default, or inordinate and inexcusable delay such that there is a substantial risk that it would not possible to have a fair trial of the issues, or there would be substantial prejudice to the respondents
The judge’s approach.
18.	The judge first considered whether the case should be struck out on the grounds that the conduct had been scandalous or unreasonable. In this connection he considered allegedly scandalous conduct with respect to one of the respondent’s witnesses, namely a Mr Alan Moseley. 
19.	There were two incidents with respect to Mr Moseley which, it was alleged, had caused him to refuse to come and give evidence on behalf of the respondent. He was no longer employed by them by the date the strike out was considered. The first concerned communications between the claimant and the Further Education/Learning Skills Council, and the claimant and the Secretary of State for Education, in which he had  described the respondent College as racist and fascist, and specifically identified Mr Moseley as a fascist who should be removed from his post.  It was not disputed that there had been correspondence to this effect.  The second, on which the Tribunal made no actual finding, was an allegation that Mr Moseley had been referred to as “white trash” by the claimant at the hearing on 13 October 2003. 
20.	The employment judge noted that he would not be surprised if that remark were made, although he made no actual finding to the effect that it was. In any event he did not think that these incidents were sufficient to justify striking out the claim. There was no appeal against that finding.
21.	The learned judge then considered the other two sub-paragraphs together. Mr Duggan, counsel for the claimant, criticised him for adopting that approach, but in my judgment it is wholly in line with the principles enunciated above.  The real question was whether there was inordinate and culpable delay such as to create a substantial risk that a fair hearing could not taking place, which places the issue fairly and squarely under paragraph (f). Any breach of paragraph (d) was parasitic on the breach of paragraph (f).  
22.	The employment judge accepted that the claimant was not to be criticised for any delay up until October 2003, but he concluded that the claimant alone was culpable for the delay thereafter, and it was a considerable and inordinate delay.  He asked himself whether the effect of the delay was to render a fair hearing no longer possible, or whether some step short of a strike out could be adopted which would achieve fairness between the parties. He also asked himself whether it might be possible to have a fair hearing with respect to one aspect of the remedy and not another. He noted that the claims were extremely large indeed. The claimant was claiming not merely compensation for loss of the job opportunity and injury to feelings, but also losses flowing from personal injury, which he claimed was caused by the act of discrimination. There was, as the employment judge put it, a “huge potential liability” for the respondent to meet. He thought that the remedy hearing would take in the region of five days and could not take place until March or April of 2007. 
23.	The employment judge then focused on certain features of the case which he considered meant that a fair hearing would not now be possible. First, there was the problem for Mr Moseley who would have to recollect events nearly eight years earlier. The significance of his evidence went to mitigation of loss.  He asserted that he would have followed up a reference with a previous employer of the claimant, London Electrical College, that the reference would have been adverse to the claimant; and that as a consequence the claimant would have been given notice of dismissal with the result that he would not have been employed for more than two weeks in any event.  His evidence was that in preparation for the case had contacted a Mr Spalding, the Principal the London Electrical College, who had led him to believe that the claimant had left that employment in breach of contract.  
24.	At a subsequent and separate tribunal claim brought by the claimant against the London Electrical College, Mr Spalding gave a different account of that conversation. Since the conversation was disputed, it would be necessary for Mr Moseley to have to recall that conversation.
25.	 A second concern was that only the employment judge himself was able to sit at the remedies hearing. This was because both the lay members who had heard the case on liability had retired. The employment judge then said this (para 4.28):
“…The Chairman very clearly recollects that although the decision on the merits was by a majority only, that the Tribunal as a whole held some preliminary views, which were unanimous, as to the claimant’s entitlement as far as compensation was concerned. The Chairman wishes to emphasise that these were preliminary views only, expressed at the time, in private, and that there is absolutely no doubt that all members of the Tribunal were keeping an open mind, subject to hearing further evidence, medical evidence and submissions from both parties. Nonetheless, it is true that such opinions were expressed, in private, albeit in an informal way. It is going to be very difficult for the Chairman to expunge that from his memory, and to ensure that, if this remedy hearing proceeds with two other lay members, to ensure that he does not try to influence those lay members.”
He recognised that it was theoretically possible for the remedy to be heard by a separately constituted tribunal but considered that it was desirable that the same tribunal should conduct the remedies hearing.
26.	He then considered the three specific heads of compensation that the claimant was seeking to recover.  First, with respect to injury to feelings, the Tribunal considered that it would not be possible for a tribunal now to determine to what extent any injured feelings resulted from the particular unlawful act of discrimination and to what extent they were caused by other alleged acts of discrimination by other employers who had also been the subject of tribunal claims (albeit unsuccessful).   Nor was it realistic to expect the claimant to be able to recall how he felt at the date the discrimination occurred.
27.	A second head of compensation related to personal injury. The allegation was that the claimant had become depressed as a result of his treatment by the respondent and this in turn had had adverse physical and mental consequences. Again, the employment judge considered that the causation problems were insurmountable.  It would be exceptionally difficult for experts, and indeed for the Tribunal, to be able to establish the necessary causal link between this particular unlawful act of discrimination and the personal injury in circumstances where the claimant was alleging that he had suffered many acts of discrimination. The cost and difficulty facing the respondent at the date of the hearing in 2006 was vastly greater than it would have been in 2003.
28.	Finally, he looked at the question of compensation up to the remedies hearing and future loss thereafter. Here he considered that Mr Moseley, who would be a reluctant witness, would not now be able to give cogent evidence and that it would be unable fair to expect him to have to speculate as to what might have happened had the claimant taken up an appointment back in 2000.
29.	Bearing all these matters in mind, he concluded that it was not possible to deal with the matter expeditiously and fairly, and that no lesser proportionate sanction would suffice
The hearing before the Employment Appeal Tribunal.

30.	In part, the hearing before the Employment Appeal Tribunal rehearsed the arguments that had been advanced before the Employment Tribunal. The EAT rejected the claimant’s submissions. In summary, they concluded that the employment judge had properly directed himself as to the relevant law and had reached conclusions which he was entitled to reach on the evidence before him. 

31.	They also had to consider certain arguments which were not addressed to the Employment Tribunal. The first was whether the employment judge, by the observations he made at paragraph 4.2(8) of the Decision (see para 26 above) had demonstrated at least apparent bias by forming a preliminary view as to the merits of the remedies’ case. The EAT considered that the judge had expressed no views adverse to the claimant and that in any event the fact that a preliminary view had been adopted as to the merits of the case did not constitute apparent bias. Reliance was placed on the judgment of Ward LJ in El-Farargy & Ors [2007] EWCA Civ 1149 at paragraph 26. The claimant also contended that he had been treated procedurally unfairly by the employment judge, who had failed to give him a proper opportunity to put his case. That complaint was categorically and robustly rejected by the EAT and has not been renewed before us.
The issues on appeal.
Recusal.
32.	The first issue is whether the judge ought to have recused himself for apparent bias.  In the Employment Appeal Tribunal this argument seems to have been advanced solely on the basis that the employment judge demonstrated apparent bias by forming a preliminary view about the merits of the claimant’s entitlement to compensation. The Employment Appeal Tribunal rightly rejected that argument, relying on Ward LJ’s judgment in the El Farargy case.   

33.	The point is advanced somewhat differently now.  The argument turns on the final sentence of para.4.28 of the Tribunal’s decision (see para 26 above).  Mr Duggan submits that the employment judge is there recognising that he has formed an unfavourable view of the claimant’s damages claim and that try as he might, he may be unable to prevent himself from improperly influencing the two new lay members who will now have to be drafted into the freshly constituted tribunal.  Mr Duggan submits that whilst the candour of the judge is to be commended, it demonstrates that he has formed a strong adverse view of the merits of the remedies’ claim going well beyond taking a preliminary view, and therefore it would be inappropriate for him to continue to hear any issues in this litigation.

34. 	I agree that this sentence is not happily formulated.  It certainly suggests that the employment judge thought that he might be unable to conduct himself as he ought with respect to these new lay members.  But reading the paragraph fairly, I do not think that it says that the employment judge had adopted a firm opinion adverse to the claimant which he would not be able to conceal from the two lay members.  If that were the position, then I think that this would demonstrate that there was not only apparent bias, but actual bias.  It would not merely be a matter of perception; the employment judge would not in fact be approaching the issue of remedies without a sufficiently open mind.
35.	In my opinion, the employment judge is saying that he would find it difficult not to share with the new lay members the original Tribunal’s preliminary views and impressions of the merits of the claimant’s compensation entitlement, and that he thought that it would be improper for him to do that. That reading of his remarks is consistent with his emphasising that the views formed at the first hearing were only preliminary, and were open to change.  
36.	In my judgment the judge was mistaken to think that it would have been wrong for him to have shared his impressions and preliminary views, and those of the original lay members, with the new members. The new members would no doubt want to know what had occurred at the liability hearing.  It would not have been wrong - and indeed would have been inevitable - that the original Tribunal would have carried their impressions of the witnesses and their preliminary views across to the remedies hearing had there been no change in the constitution, and I can see no objection to the employment judge sharing with new members what those impressions were.  
37.	Of course, it would be important for the employment judge to emphasise that they were no more than preliminary views and impressions and did not carry much weight, and that the decision on remedies would have to be taken principally on the basis of the new tribunal’s assessment of the evidence adduced before them. But I can see no objection in principle to the employment judge seeking to put a new member into the picture as fairly as he or she can.  Indeed, in a practical world it would be wholly unrealistic to expect the members of the original tribunal to remain quiet about their impressions gleaned from the liability hearing.  They cannot be expected to adopt the Olympian detachment of a Rhadamanthus.   In fairness, Mr Duggan. accepted that if my interpretation of the employment judge’s comments is correct,  this would not be a wrong thing for the employment judge to do, and it would not constitute a basis for alleging either actual or apparent bias.
38.	It follows that in my view the employment judge was unnecessarily concerned about doing what it would not in fact have been improper for him to do.  This did not, however, constitute either actual or apparent bias.  It provides no grounds for alleging that he ought to have recused himself from hearing the strike out application.

Improper considerations.
39.	It is common ground that in order for the appeal to succeed, it must be shown that the employment judge erred in law in his approach to the issue of whether a fair trial was possible. It is accepted that the employment judge asked himself the right questions.  However, it is alleged that he was influenced by improper considerations in concluding that a fair trial would not be possible.
40.	  First, it is submitted that there was no basis for asserting that Mr Moseley would not have been able to give evidence after such a long time.  He had provided a witness statement and in any event it was mere speculation whether he could now recall the particular conversation with Mr Spalding or not.  No attempt had been made to find out whether he could remember these events.  
41. 	I agree with that criticism.  In this case the evidence fell into two categories. First, there was evidence about what Mr Moseley’s practice had been in taking up references.  Second, there was the question about what he had said in the conversation with Mr Spalding.
42.	In my judgment, it is highly likely that he could recall what his practice was; there may be greater problems with his recall of particular conversations, but it is by no means self-evident that he could not recall the conversation since it was conducted specifically with this litigation in mind.  More importantly, he had not been asked whether he could or not.  Furthermore, the difficulty would be shared by Mr Spalding, the other party to the conversation.  A tribunal would have to make allowance for the lapse of time when assessing that evidence. 

43.	Mr. McGrath, counsel for the respondent, suggested that it was in any event unfair to the respondent to allow the claimant to rely upon detailed evidence challenging the respondent’s mitigation argument which had only emerged because of the culpable delay.  He says that if the appeal had been heard in 2003, the evidence now relied upon by the claimant would not have been open to him since it emerged in the later proceedings against the London Electrical College.  In my view this argument has no merit. It cannot possibly be inconsistent with a fair trial that potentially relevant evidence has emerged which might assist the court to arrive at a more just decision.  The only relevant question, so far as the impact on the fairness of the trial is concerned, is whether the effect of the delay makes it unfair to expect the respondent’s witness to deal with the new evidence.  

44.	The second allegedly improper factor was the judge’s concern that there would need to be new members and that he was concerned that he would not be able to act properly with respect to them.  Mr Duggan submits that even if this did not display bias, it was not material to the issue whether a fair trial could be held.

45.	As I have said, I think that the employment judge’s concerns were misplaced.  But in any event, those concerns cannot in my judgment conceivably be a proper consideration justifying the striking out.  The claimant should not be prejudiced by the fortuitous fact that the two original lay members have retired. It is never ideal when the composition of the tribunal hearing liability differs from that hearing remedies, but the change in composition does not go to the question whether there can be a fair trial.  And if the judge was concerned that he would not be able to act properly, he ought simply to have recused himself from hearing the remedies case.  He could not rely upon his own lack of self control to disadvantage the claimant.
46.	The other points essentially go to the issue of causation with respect to damages.   The judge thought that with respect to the claim for injury to feelings and personal injury which the claimant alleges resulted from the act of discrimination, it would be too complicated for any court to disentangle to what extent the losses resulted from the unlawful act of discrimination and to what extent they were the result of other alleged acts of discrimination by other employers, which were the subject of unsuccessful claims of discrimination.  
47.	Mr Duggan makes the powerful point that this would have been a problem even if the case had been heard without any culpable delay in 2003.  Nothing relevant had changed between that date and the date of the judge’s strike out decision.   Mr McGrath conceded that this was so.   
48.	In the circumstances I agree that this would not be a justification for striking out these aspects of the claim.  In any event, so far as injury to feelings is concerned, whilst it is correct to say that there must be evidence of injury to feelings (see Chief Constable of West Yorkshire Police v Vento (No 2) [2003] ICR 318), a tribunal could readily conclude that there had been some injury necessarily flowing from an unlawful discriminatory act, even if they rejected the claimant’s apparently somewhat exaggerated claim.  At the very least it might reasonably be anticipated that the claimant would recover a sum at the lower end of the Vento scale.
49.	For all these reasons, I consider that the approach of the employment judge was not justified.  I do have sympathy for the employment judge’s frustration at the continuing lack of co-operation shown by the claimant, compounded by the claimant’s tendency to appeal virtually each and every adverse decision.  The claimant was, whilst his refusal to co-operate continued, preventing any fair trial taking place, as the Commission for Racial Equality tacitly accepted in their submissions to the Tribunal. But I do not think that the position was irreversible such that a fair trial could not take place.

50.	The question which then arises is what should now happen.  I would not send this matter back to a tribunal to hear the strike out issue afresh.  In my view there is not a proper basis to sustain such an order.  It must be remembered that this is a very exceptional case where liability has already been determined in the claimant’s favour.  It is a very severe step indeed to deprive him of any remedy, particularly when some injury to feelings compensation inevitably arises from an act of direct discrimination of this nature. I do not say that a strike out in such circumstances can never be justified, but I am satisfied that this was not such a case.  This is particularly so given that shortly before the application for strike out was made, the claimant had indicated, through the Commission for Racial Equality, that he was willing to co-operate and to be medically examined by the respondent’s doctors.  

51.	So the matter will have to be remitted to the Employment Tribunal to determine what steps should now be taken in the light of this judgment.  It will be for the tribunal to determine what orders would now be appropriate. However, I would agree with the submission of Mr .Duggan that in the circumstances a more proportionate order to striking out  would have been an “unless” order, requiring the claimant to present himself for examination by a certain date, with the consequence that  his case would be struck out for non-compliance if he refused or was otherwise unco-operative.  He should also be required to make all his medical records available to the respondent’s experts.  So far he has frustrated a fair trial by seeking to advance his own expert evidence whilst depriving the respondent of the opportunity effectively to challenge that evidence.  If he were to continue to take that line after the making of an unless order, he would only have himself to blame if his case were then to be struck out for non-compliance.

Disposal.
52.	The appeal succeeds.   In my judgment, the strike out was not warranted for the reasons relied upon by the employment judge.  Furthermore, I do not think that it is a case where a strike out would be justified at this stage on the basis that a fair trial is not possible.  However, as the claimant’s counsel readily concedes, it would be perfectly proper for an “unless” order to be made to ensure the claimant’s co-operation in bringing this to a trial on remedies as soon as possible.  The tribunal may in the circumstances consider this an appropriate order to make.  

53.	Given the history of this litigation, I think it would be desirable for the case to be dealt with by a fresh employment judge, both with respect to any order which might now be made relating to the trial, and to preside over any remedies hearing which might subsequently take place.

LORD JUSTICE RIMER:
54.	I agree.

LORD JUSTICE WARD:
55.	I also agree.