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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Monfared v Chartered Society of Physiotherapy [2014] EWCA Civ 828 (19 June 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/828.html Cite as: [2014] EWCA Civ 828

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Peter Clark
Appeal No: UKEATPA/1477/12/BA

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/06/2014

Lord Justice Rimer :

1. This is a renewed application for permission to appeal. The applicant, Siamak Monfared, who has at all stages appeared in person, is the claimant in employment tribunal proceedings he brought against The Chartered Society of Physiotherapy ('the CSP'). Following a pre-hearing review held before Employment Judge Wade in London Central Employment Tribunal on 16 July 2012, and by a judgment sent with reasons to the parties on 3 August 2012, Judge Wade struck the applicant's claim out under rule 18(7)(b) of the Employment Tribunal Rules of Procedure in Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. That rule empowers the striking out of a claim on, inter alia, the ground that it 'has no reasonable prospect of success.'
2. The applicant's notice of appeal to the Employment Appeal Tribunal ('EAT') was rejected on the paper sift by Underhill J, the President (as he then was), under rule 3(7) of the Employment Appeal Tribunal Rules 1993 on the basis that it disclosed no reasonable grounds of appeal. The applicant exercised his right under rule 3(10) to address the EAT at an oral hearing as to why his appeal should be allowed to go forward to a full hearing on notice to the CSP. He advanced that argument to His Honour Judge Clark on 26 June 2013. In his succinct extempore judgment, Judge Clark summarised why none of the points the applicant raised identified an arguable point of law, or therefore any point that merited the appeal going forward to a full hearing, and dismissed the applicant's rule 3(10) application and, therefore, his appeal.
3. The applicant's appellant's notice to the Court of Appeal followed on 22 July 2013 (within 21 days of the seal date of Judge Clark's order, and so in time). It came before Lewison LJ on the papers, who on 11 November 2013 refused permission to appeal. His reasons were that: (i) Judge Wade had directed herself correctly on the law: (ii) she had made an evaluation of the facts that was not open to re-assessment before the EAT, appeals to the EAT (and to the Court of Appeal) lying only on a point of law; (iii) he anyway agreed with Judge Wade's evaluation and would himself have struck the claim out; and (iv) the applicant's allegations of procedural irregularity were without substance.
4. There followed the renewed oral application for permission to appeal. My other commitments had not enabled me to read the file of papers in full before the hearing, although I had read the documents that are at the centre of the case. The applicant's grounds of appeal were in a 99-paragraph document covering some 28 pages, and his skeleton argument in a 42-paragraph document covering some 24 pages. He also produced at the hearing a further written statement in support of his application. It was not directed at identifying any error of law by Judge Wade, Judge Clark or Lewison LJ, but was instead directed at making generalised criticisms of the legal system that had resulted in his claim being struck out. The flavour of the statement appears from the following opening extracts:

'I very nearly decided not to come today.

I understood that I will never be safe by making a claim against my trade union, why should I a married father of two children take a risk of questioning the safety and equality at the public hearing.

I have come precisely because I do not want to live in fear in a free country, our country. I do not want this land to become a place where Muslim academics and employee are intimidated. I do not want freedom of speech to die in the land give the most precious liberties to the rest of the world. I do not want any employer to endure violence and racial harassment to the their employee or worker [sic].'

5. The statement continued in a similar vein. It did not focus on why the decisions below were said to have erred in law. The closest it came to doing so was in the following passages:

'To give you another bad example of my case, in my last hearing with ET judges, the Counsellor from the CSP ambushed me just five minutes before hearing start. I understood that this is a little dirty secret common practice amongst the ET judges and barristers.

What other dirty little secret might the CSP Counsellor like to admit or may have for the future? I can not believed that they behave in such abusive manner and I wonder if the ET judges was under pressure from the Chamber of CSP counsellor.'

6. These generalised slurs, which are not founded on any credible factual basis, identified no arguable error of law on the part of the tribunals below. Nor at any point in his oral address did the applicant attempt to identify any such error, although his criticism of the decisions was not in question, and he accused Judge Wade of not having read the papers. The manifest care and thoroughness of her written reasons suggests that that criticism was not well founded.
7. At the end of the oral hearing, I regarded myself as no closer to an understanding of whether there was any arguable error of law on the parts of the tribunals below that merited the giving of permission to appeal, although I was left in no doubt that the applicant considered he had been dealt a very great injustice at their hands. Since he had done nothing to assist me in identifying whether he had an arguable case, I thought it best to reserve my reasons on the application until after I had had the opportunity to read more fully into the material in the file with which I had been provided, in the hope that I might better understand what, if any, his point was.
8. After I had reserved judgment, the applicant took the opportunity to write further to the court on 26 March 2014. The main point of his further communication was apparently to draw my attention to other proceedings in which he is or has been engaged, in the Central London Court, and perhaps to other claims as well. The applicant's command of English is not perfect (it is not his first language), and it is, therefore, not always entirely easy to understand all he writes. Nothing, however, in his further representations appeared to be relevant to the present application. I suspect that the applicant would disagree with that observation, his further representations being headed 'JUSTICE IN ENGLAND', and he is obviously deeply unhappy about the English justice he has received in this case. I mean, however, no more than that his further representations do not relate to this case and so are irrelevant. I am concerned only to decide whether the tribunals below made any arguable error of law that might justify the giving of permission to appeal.
9. What is the applicant's case about? He is a physiotherapist. His ET1 asserted discrimination on grounds of race and religion and that he was owed unidentified payments and had other unidentified complaints. Paragraph 5.2 of the ET1 asserted 'numerous discrimination action against me by my employer and my trade union officer'. His claim was, however, brought not against his employer, but only against his union, the CSP. The claim is oddly framed, and Judge Wade noted that of the nine complaints in it, four 'cannot conceivably be attributed to' the CSP. The heart of the pleaded complaint against the CSP does not make for easy reading but its essence is apparently that the CSP failed to look after his interests sufficiently following a complaint about the applicant by a patient. I shall quote its material parts as it appears in the ET1:

'1. On 16^th January 2012 @ 11.33 am i received an e-mail from Ms Lesley Mercer Head of the Industrial Relation Department stating that she is not allocating my case to another CSP officer as she felt that Ms Clair Sullivan the Full time CSP officer acted professionally and therefore refusing any future legal advice or representation. please see attached copy of the e-mail.

2. I was asked to attend a disciplinary hearing following a complaint of the patient named [Ms B]. … [Ms B] made most her complaint about hospital care and the level of assistance she had while was admitted for her shoulder surgery. My manager took this great opportunity to build up the case against me by going to speak to patient and encouraging a complaint. [Ms B] later came to the department and she was seems happy and i refund the shoulder pully as she was requested. I do not understand why my manager decide to call for such extend hearing, involving lots of people and put greater pressure on me and my family. My trade union officer Clair Sullivan was taking part of more protecting the other member of staff and management case instead defending me for these allegations later i find out that our clinical lead physiotherapist in patient used to work with Clair Sullivan and my guess is as usual MS Sullivan make a deal with management team by not acting with integrity and professionalism towards the CSP members. I had in the past similar poor level of legal assistance from her and as resulted me to lose jobs, money, significant pressure on me and my family. During this investigation, other 4 members of the staff 3 white English and 2 Indian Indo were sitting in the treatment area but they all left the department without helping and assisting initial First Aid to my next patient.

3. I am in strong opinion that all these aggravations start since I submit my complaint in 2008 on well known consultant working in Spire Bushy Hospital and my recent claim to the Central London County Court Claim Number 1SL40600/SM v. [Dr L]. I was repeatedly harassed, bullied, shouted by Consultant and Sisters and some Physiotherapist. They tried the work environment hell for me by a): Reducing my working hours from 65 to 37.5 weekly to put financial pressure to my wife and two young children and not having money and be able to pay for legal advise and solicitor to my court case. b): Lack of promotion since 2007 and appointing Raj Selevarji who is Indo and much less experience than me to Clinical Lead. Raj was Band 6 or bottom 7 in NHS banding and he is to work as in-patient not out patient. He did not pass the interview in our hospital 3 month before his current position in 2008 by Caroline Varney previous manager. c): not involving me in my CPD and on going training by constant changing management directions plan.'

10. The applicant continued by making more allegations directed at the employer rather than the CSP. Paragraph 4 made a fleeting return to the CSP:

'I complaint about all the above point 3 and level of the assistance i had from CSP officer since 2007 but each time i was told that the trade union unable to assist the member in private sector left me without anyone to turn to.'

But it then returned to complaints about the employer, before diverting to an apparently irrelevant incident concerning the Harlequins Rugby Club and then moving on to further allegations against the CSP which were apparently advanced as of more direct relevance to the applicant's claim, although the relevance is obscure:

'Instead Mr Neil Clark [of CSP] represent me only 2 hours in one of my hearing as the full time officer of the my area was unable to represent me. Mr Lark delivered such poor negotiation with the my abusive manager and left me more vulnerable at work. He refuse to attend in future meeting and provide me further support and assistance claiming that he did a favor to me to come as he is not cover the area and CSP are not involved in private sector. my case has been transfer to Ms Clair Sullivan Assistance Director of CSP Industrial Relation department. Please see the following link for more information [and a link is given].'

11. The ET1 then returned to Ms Sullivan, by assertions that '[t]his is not the first time [she] discriminating me by refusing to give my right as member of the CSP.' Four sub-paragraphs followed, relating to various not easily comprehensible incidents, the first of which apparently dated from about 2001/2002 and the third from about 2006. The account of the incidents included only two references to Ms Sullivan, one in connection with an undated incident arising out of the applicant's time with Sugarman Medical Locum Agency and another in relation to an incident in 2006.
12. It is not surprising that the CSP regarded such an ill-pleaded case against it as raising nothing of substance that ought to be allowed to go the distance of a full hearing at an employment tribunal. They naturally wanted to avoid the expense of such an outing, when they would have little or no prospect of recovering their costs from the applicant. They put in a very full ET3, in which in paragraph 5 they identified much that was irrelevant in the ET1:

'The compensation and remedies sought by the Claimant appear to relate to his employer believed to be Spire Hospital Roding rather than his trade union but for the avoidance of doubt the CSP and its trade union function cannot secure for the Claimant either: a pay rise; promotion; agreement or arrangement of training in line with the CPD or otherwise; stop bullying or harassment and be respected; removal of written warning; refund of money for hearing aid and MACP course.'

The ET3 also asserted that all allegations arising before 11 January 2012 were out of time and that the employment tribunal had no jurisdiction in respect of them.

13. There followed on 18 June 2012 a case management discussion before Employment Judge Snelson, who gave directions for a pre-hearing review at which, inter alia, consideration was to be given to whether the claims, or any of them, should be struck out as having no reasonable prospect of success. Directions were given for the exchange of witness statements by the witnesses the parties proposed to call. Judge Snelson, in giving his reasons for such directions, said that the applicant was born in Iran in 1966 of a Muslim family; that he was a physiotherapist; that he had over many years been involved in numerous disputes with his employers; that he had frequently engaged the assistance in such disputes of the CSP, of which he is a member, and that the file the CSP held in his name was said to contain over 1,000 pages. The judge identified the odd nature of the ET1 (that is, its inclusion of complaints against persons other than CSP) but said that, with the applicant's help, he had been able to identify the following heads of claim against CSP: (1) refusing to allocate a representative in substitution for Ms Sullivan; (2) failing adequately to make the applicant's case in disciplinary proceedings arising out of Ms B's complaint; and (3) generally, over an extended period, failing to support the applicant and act in his interests. The judge noted in paragraph 10 of his reasons for his order that '[d]ecided cases show that it is proper to strike out complaints of discrimination based on nothing more than an assertion of discrimination. Cases are not proved on assertions but on evidence.' At the CMD, the applicant told the judge that he was relying only on direct discrimination, but later the same day he sent the tribunal an email saying he was also relying on victimisation.
14. There followed the hearing of the pre-hearing review on 16 July 2013, before Judge Wade. The applicant was in person, the CSP was represented by Mr Ben Cooper, an experienced employment law barrister. The function of the pre-hearing review was to decide whether, inter alia, the whole claim should be struck out. The judge correctly directed herself that whilst there are cases in which a strike out is appropriate – when, for example, the prospects of success are 'fanciful' rather than 'reasonable' – a strike out order is a draconian step, for obvious reasons: it will deprive the claimant of an opportunity to give full evidence and to cross-examine witnesses.
15. The only evidence before the judge were witness statements from the applicant and Ms Sullivan (neither gave oral evidence, a matter to which I shall return), plus a bundle of documents; and the judge looked at the documents in the bundle to which she was referred. She allocated about 45 minutes to each of the parties to address her. She had also given the applicant about 45 minutes first to read Mr Cooper's skeleton argument, and recorded that he had declined the offer of a further half hour in which to do so; and, in turn, she allowed the same 45 minutes for Mr Cooper to read the applicant's witness statement, which, contrary to Judge Snelson's directions, he had only served on the morning of the hearing. The judge recorded that she attempted to summarise for the applicant in plain English the points made by Mr Cooper. She recorded in her reasons that she asked the applicant why she should conclude that he had a reasonable prospect of establishing allegedly unfavourable treatment because he was not white and was Muslim. She asked him to take her to passages in the pleadings that would assist, but said that on several occasions his responses were unclear and unfocused. She concluded that the claims did not have a reasonable prospect of success.
16. She explained this under four headings. Her first reason, explained in seven sub-paragraphs, was that the claim was 'prima facie implausible'. They included the making of the four irrelevant claims in the ET1, that the applicant's case in his witness statement differed from those in his ET1 and introduced new background material, and that the applicant had a tendency to look to the existence of an underlying conspiracy, in particular that 'Dr L's fingers were everywhere', Dr L being someone the applicant had been suing for some six months, although the judge erroneously said this had been going on for six years. Judge Wade assessed any such conspiracy to be 'inherently unlikely especially in relation to discrimination by the Claimant's trade union where there is no link between it and Dr L.' The applicant had also not given credit to the CSP for its commitment to him and for the successes it had achieved on his behalf. She said that 'it is notable that, with certain restrictions, the union is indeed still prepared to represent the Claimant and in relation to one particular matter only have they withdrawn their support.' She said that he had characterised himself as the victim of discrimination and had not taken any responsibility for his own actions. Much of his evidence was unclear, and where there was a lack of clarity there is often implausibility. She said:

'The Tribunal has raised and discussed with Mr Cooper the possibility of looking for discrimination not just in the particular individual events but also in the pattern of matters overall. In other words looking at the wood as well as the trees to see whether there is any discrimination lying there. The Tribunal's conclusion from the information available today is that there is no reasonable prospect of establishing an overall pattern that is discriminatory. Indeed the overall pattern is of the Claimant being advised by his union and their legal advisers that claims that he wanted to bring did not have a good prospect of success; rather than consider whether they might be right the Claimant has used this as corroboration of their discriminatory attitude. When asked by the Employment Judge why the Claimant did not take on board this advice, which very possibly was intended to be helpful, the Claimant was not able to provide a response'.

17. The second main ground for the judge's reasons was that there was a plausible explanation why the relationship between the applicant and CSP had foundered, if not wholly failed. That is that the CSP had acted as it had because of the applicant's behaviour. The question was whether a white person in the same circumstances as the applicant would have been treated differently. The one actual comparator that the applicant cited was Mr B. What happened to the applicant and Mr B was separated by two years, and the judge pointed out that the applicant himself, both in his submissions and orally, 'provided a non-discriminatory explanation for why he and Mr B had been treated differently', as the judge then explained. The applicant also put forward a hypothetical non-Muslim and/or non-white comparator. Whilst it was acceptable for him to do so, the judge was persuaded that such a comparator in the same or not materially different circumstances as the applicant 'would be highly likely to find themselves in a very similar position.'
18. The judge came to the heart of the applicant's difficulties in paragraph 16. He had had an eight-year relationship with the CSP, between 2004 and 2012, one that had generated about 1,300 pages of correspondence. The reason the CSP withdrew its support in relation to the particular matter in January 2012 was because of the applicant's conduct. The CSP's complaints in that respect were set out under eight sub-paragraphs in a letter of 4 April 2012 that the judge quoted. They reflect the applicant in a poor light. On the face of it, they provided compelling grounds for the CSP's withdrawal of its support for him in relation to the January 2012 matter. The judge's assessment was that there was no reasonable prospect of the applicant establishing at a trial that this explanation provided by the CSP was not credible and she said that this was the case in relation to all three of the applicant's arguments. She explained that the applicant's own explanations at the hearing and in his ET1 offered accounts which he must have thought plausible but which did not support a complaint of discrimination.
19. The next main heading that the judge considered was as to the applicable law. The critical question in discrimination cased is 'why was the claimant badly treated'. The applicant seemed to think that the fact that he was not white and was Muslim provided an automatic discriminatory answer to that question, but it did not. The judge gave her reasons as to why the answer to the question why the CSP declined to represent him in January 2012 was not for discriminatory reasons. The CSP was not bound to represent him and during his submissions the applicant had himself regularly relied on non-discriminatory explanations for what he said was the CSP's unlawful behaviour.
20. The judge next considered the point that the applicant recognised that his case had difficulties, but that he wanted to keep the proceedings in order to see if 'something turns up.' The judge said that point had caused her more concern, but noted that it was an approach criticised by Underhill J in ABN Amro Management Services Ltd. v Mr G. Hogben (UKEAT/0266/09), who said:

'It is not legitimate to allow an apparently hopeless case to proceed to trial in the hope that "something may turn up" during cross examination. There must be a reason to believe that there may be matters which can be put to the relevant witness which might cause him to acknowledge or the Court or Tribunal in any event to conclude, that the facts were as the Claimant alleged.'

The judge therefore struck the claim out.

21. The applicant's skeleton arguments for the EAT covered some 15 single spaced pages. In a case of this nature, there is a limit to what can be sensibly be covered on paper and Judge Clark dealt with the appeal shortly. He correctly summarised the judge's conclusion at the employment tribunal as being that:

'… she found the Claimant's case on discrimination implausible; she took the view that there was no reasonable prospect of raising a prima facie case of unlawful discrimination such as to shift the burden of proof to [the CSP] to provide an explanation for the treatment complained of which was unrelated to his race and/or religion'.

Judge Clark noted an objection to the judge's reference to the offer of an extra 30 minutes to read Mr Cooper's skeleton argument (I do not understand upon what the objection was based) and expressed his view that the judge's factual error as to the duration of the applicant's litigation against Dr L was an immaterial one. He said that:

'6. The Judge formed her opinion on the basis of the Claimant's witness statement and that of a Ms Sullivan, his former trade union representative. Neither of them gave evidence. That is not unusual at a Pre-Hearing Review. He also mentions that there was an emergency operation next door to the court room involving some drilling. From my own experience that is a tiresome event but one which has to be managed as best as can be done.'

22. Judge Clark summarised the essence of Judge Wade's decision as being that there was nothing in the material advanced by the applicant that gave rise to a prima facie case of unlawful discrimination. This was not therefore a case in which, at a trial, the applicant had any real prospect of shifting to the CSP the burden of disproving that their actions were motivated by discriminatory reasons. Insofar as the applicant alleged that the CSP had looked after his interests negligently, Judge Clark expressed no view on that beyond that negligence was not the same as unlawful race or religious discrimination. He also noted an allegation of perversity advanced by the applicant, and plainly regarded it as not surmounting the very high hurdle that such an assertion requires. Judge Clark said that the applicant also raised a burden of proof point, suggesting that the UK domestic law was not in line with the relevant EU Directive, a submission that Judge Clark rejected, saying that it was properly transposed into domestic law, now in the Equality Act 2010. Judge Clark said that the applicant also made a complaint about the case management order of 27 June 2012, but as he had not appealed against that order, there was also nothing in that. The result was that Judge Clark dismissed the rule 3(10) application and the applicant's appeal.

The proposed appeal to this court

23. The grounds of appeal include much background. To the extent that they include material additional to that which is in the ET1 and the witness statements before Judge Wade (or additional to anything that could be derived from the bundle of documents before Judge Wade), I do not consider that I either can or should have regard to it. The applicant should understand, but perhaps may not, that each successive stage in the appeal process is not an opportunity for him to re-develop, enlarge and seek to improve upon his case. All that I am concerned with is whether it is arguable that Judge Clark made an error of law in ruling as he did, which in turn requires a consideration of whether he erroneously failed to recognise that Judge Wade had made an arguable error of law. In considering that, there is no justification for considering facts, matters and material that the applicant could have put before Judge Wade, but did not. The applicant's primary focus has to be on her decision and why, on the basis of the material before her, her decision was arguably wrong. In particular, in his grounds, the applicant complains about the case management discussion before Judge Snelson, but that complaint is irrelevant. He did not appeal against Judge Snelson's order and cannot complain about it now.
24. The applicant complains about the fairness of the hearing before Judge Wade, in particular the late service upon him of Mr Cooper's skeleton argument. Judge Snelson did not, however, lay down a time limit for the service of skeleton arguments, so the late production of Mr Cooper's argument was not itself a breach of any order; and in any event Judge Wade gave the applicant 45 minutes (and an additional 30 minutes if he wanted it, which he did not) to consider it. The only party who appears to have breached Judge Snelson's order is the applicant, who did not produce his witness statement until the morning of the hearing, even though it had been directed that they should be exchanged on 6 July 2012. Judge Wade said, in paragraph 22(b) of her judgment, that the 'significant point here is the Claimant wanted to hold back his evidence and have the proceedings to cross examine the Respondent's witnesses, using if possible a lie detector (the proposed source was not clear), in order to establish that there was discrimination in their motives.'
25. The applicant of course, like most litigants in person who disagree with an adverse decision of a court or tribunal, asserts that the hearings below did not respect his human rights, in particular article 6. I have, however, read nothing to suggest that he did not have a fair hearing that was compliant with article 6. In particular, article 6 does not guarantee a claimant that he will have a right to take any and every claim to a trial: it does not confer a right to take to trial a claim that is fairly assessed as having no real prospect of success, which was Judge Wade's fully and carefully reasoned assessment here.
26. He also asserts that Judge Wade made erroneous findings of fact. This line of complaint is also not seriously arguable. Her assessment was simply that, on the facts before her, the applicant's claimed case of race and religious discrimination was manifestly implausible and failed to reach the point at which it could be argued that a burden of disproof would be required to be discharged by the CSP. That was an assessment that Judge Wade was entitled to make and the applicant's essentially unreasoned assertions against such conclusion do not begin to persuade me that she fell into any sort of error. Insofar as the applicant seeks to say that her findings were perverse, allegations of perversity are, again, very commonly made by litigants acting in person, but they rarely have any foundation, and this case is a good example of that. Insofar as the applicant complains of procedural unfairness, I consider, in agreement with Lewison LJ, that none of any substance has been identified.
27. Overall, despite the pages of representations the applicant has produced, this was a relatively straightforward pre-hearing review in which Judge Wade was faced with the task of deciding whether the applicant's allegations of race and/or religious discrimination had any real prospect of success at a trial; and she gave cogent reasons for finding that they did not. On the material before her, and for the reasons she gave, that was an assessment that she had jurisdiction under the rules to make. It was also one that, on the facts, she was entitled to make.
28. The only other matter to which I should refer is the applicant's suggestion that he was denied the opportunity of cross-examining Ms Sullivan. In paragraph 19 of his grounds of appeal, after stating that Mr Cooper was given an opportunity to cross-examine him, he said he 'wasn't given an opportunity to cross-examine Ms Sullivan. I find out extremely unfair that the Tribunal reach an order same day without giving chance for cross-examination of one witness.' The applicant then went on in paragraph 20 of his grounds of appeal to say this:

'I am concern that the Tribunal Judges did not make an order of witness for hearing as my case was related to the patient complaints, there was 5 witnesses and 3 manager and HR of the Spire Health care which needed to be cross exam. I did not have the opportunity to prove Tribunal that this complaint has nothing to do with me and I did my best for care of unwell patient. If Tribunal does not give the chance to claimant to call the witness how can we prove that 5 of my colleagues walked away from ill patient and there was high-risk serious complication. If we are going to ignore all the fact how are we going to learn from mistake. This may happen to any of us one day or to the person whom you are closed with. Is it fair that we should leave them alone and walked in front of them, let them fight for their life. Is this not Discrimination?'

29. Passages like that in the applicant's grounds pose something of an interpretative challenge, and I confess to a less than full understanding of what he was there saying. The facts are that Judge Snelson's order on the CMD provided, in paragraph (3), for the exchange by the parties by 6 July 2012 of witness statements of 'all witnesses (including the Claimant) whom they intend to call to give evidence at the PHR …'. Thus the applicant had the chance to call as a witness whomever he wanted, provided he first exchanged a witness statement for him or her by 6 July. In the event, the applicant served no such statements, nor did he even serve his own until the hearing, and Judge Wade explained how he had wanted the hearing to proceed without his statement.
30. As to the complaint that whereas Mr Cooper had cross-examined the applicant, the applicant was refused the opportunity to cross-examine Ms Sullivan, if that is what had happened that would have been unfair. There is, however, no suggestion in Judge Wade's judgment that Mr Cooper cross-examined the applicant or that the applicant made any application to cross-examine Ms Sullivan; and the plain inference from paragraph 6 of 'The Evidence' section of Judge Wade's reasons is that there was no oral evidence. Moreover, it is plain that Judge Clark also understood that there was no oral evidence before Judge Wade (see paragraph 6 of his judgment, quoted above).
31. In the applicant's grounds of appeal to the EAT, he asserted in paragraph 16 that 'the ET refused to allow my witness Ms Sullivan to testify'. Ms Sullivan was not, on the face of it, the applicant's witness, and it may perhaps be that what he was there complaining about was that he was not allowed to cross-examine Ms Sullivan. He continued that 'This refusal was made on the grounds that I proposed her as a witness late'. Whatever the applicant means by this, it again finds no mention in either Judge Wade's reasons or Judge Clark's reasons. I am not prepared to accept that any relevant question of cross-examination, which finds no mention in either judgment below, arose at either hearing below. If the applicant had made any point about this in his argument to either tribunal, it is incredible that neither judge referred to it. I am, therefore, not prepared to accept that there is any arguable point in this respect that went to the fairness of the hearing before Judge Wade. In any event, the question for Judge Wade was whether the applicant's own evidence, untested by cross-examination, made a prima facie case of discrimination sufficient to cast a burden of disproof upon the CSP and so justify allowing the claim to go forward to a full hearing. To make such a case required the applicant's evidence to cross a low threshold, yet Judge Wade's was assessment that it wholly failed to do so.
32. In my judgment, in agreement with Lewison LJ, the applicant has no arguable point that has any real prospect of success on appeal. I therefore refuse permission to the applicant to appeal.