APPEARANCES
| For the Appellant |
DR URUAKPA'S HUSBAND APPEARED ON BEHALF OF THE APPELLANT |
| |
|
MR JUSTICE LINDSAY (PRESIDENT):
- We have before us, by way of a preliminary hearing, the appeal of Dr U A Uruakpa in the matter Uruakpa v the Royal College of Veterinary Surgeons.
- Mrs Uruakpa - Dr Uruakpa - has been represented today by her husband and, alongside Mr Uruakpa, has sat a representative of ELAAS who has, in fact, not given a name to us. We have a skeleton argument provided by Mr Uruakpa only this morning, which we have tried to digest, and we have heard him on that skeleton.
- The decision of the Tribunal, which was Mr R Peter sitting alone at London (South) was as follows:-
"The Applicant's complaint of unlawful race discrimination has no prospect of success and under rule 13(2)(d) of the Industrial Tribunal Rules of Procedure 1993, I hereby order that the Originating Application herein be struck out on the ground that it is frivolous".
- A first consideration is this; Mr Uruakpa's case was struck out on the sole basis that it was "frivolous". In context, there is authority which shows that that means that the case must be so clearly frivolous that to put it forward would be an abuse of the process of the court, see Young v Holloway [1895] Probate, page 87 at page 90.
- Especially, it could be said, that should be the case in the Employment Tribunals where the rules expressly contemplate a case proceeding notwithstanding that the Employment Tribunal rules that it has no reasonable prospect of success – see Employment Tribunal Rule 7(4). There is no sign of Mr Peters at the Tribunal in this matter having recognised that merely to say that the case is bound to fail, may not be enough. At page 74 of our papers, paragraph 23, the Tribunal concludes:-
"For all these various reasons I conclude that whichever way the Applicant puts her case she is bound to fail. There must be considerable merit in recognising that situation now and terminating the Industrial Tribunal proceedings at this stage. Accordingly, the Originating Application is struck out as the complaint has no prospect of success".
- That looks as if the Tribunal was taking the view that merely to hold that there is no prospect of success is of itself necessarily sufficient to make the case "frivolous", and yet, as Young & Holloway suggests, it has to be so clearly so as to amount to an abuse of process. There is here an arguable error of law which for the moment we will call the "Abuse of process point". But, perhaps more importantly, there is a second point, and that is this; Counsel for the Veterinary College below submitted that there were only 4 gateways to the register, entry upon which entitles someone to practice in the United Kingdom as a vet - see paragraph 11 of the Tribunal's decision. One of those four gateways is examination. It is the fourth in paragraph 11(iv).
- However, in the course of argument below Mrs Uruakpa referred to a fifth gateway, namely those cases in which the College, in its discretion, has dispensed with the need for examination. At the top of our page 72, in paragraph 16(iii), it says this:-
"The Veterinary Surgeon (Examination of Commonwealth and Foreign Candidates) Regulations 1967 in regulation 5 give the Council power to exempt a candidate from the whole or any part of the examinations required by section 6(2) of the 1966 Act. Under that provision a Doctor Burr-Nyberg who had a degree from Pretoria University was registered under the 1966 Act after being exempted from the requirements to sit the examinations. The Applicant has not been so exempted".
- We do not have those Regulations of 1967 before us but we note that Mrs Uruakpa's assertion below as to their existence and effect is not countered in the decision of the Tribunal and so we assume that such regulations exist and do, indeed, open up a fifth discretionary gateway. If that is right - and we have to emphasise "if" - then the Tribunal's conclusion under section 41, that the section gives the College a cast iron defence, is arguably wrong. On that subject - and I am now looking at paragraph 19(iii) of the Tribunal's decision - the Tribunal said:-
"Even if there has been discrimination, section 41 of the 1976 Act is a complete answer to such discrimination being unlawful".
And, on the next page, in their paragraph 22, they again return to the point. They say this there:-
"The Applicant does not raise any argument that the Respondent is applying any requirement or condition which is indirectly discriminatory. This is possibly because identifying the requirement or condition would be as difficult as experienced by Mr Whitmore in the case of Choux v. Royal College of Veterinary Surgeons. Even if such an argument could be raised and even if that argument survived the challenge of justification it would still not be unlawful because section 41 of the 1976 Act would apply".
- It seems to us at least arguable, given that there appears to be a discretionary gateway to the register, that to say that section 41 is necessarily, in any event, a good defence, is inconsistent with the Hampson case at [1990] IRLR 302 in the House of Lords. That seems to us to be an arguable point of law and that is, in effect, the ground raised by paragraph 23(ii) and paragraph 24 in Mrs Uruakpa's present Notice of Appeal. We permit those paragraphs 23(ii) and paragraph 24 of the Notice of Appeal to go to a full hearing. True it is that the section 41 point is an alternative point in the Tribunal's mind but it is difficult to say what view they would have taken had they realised; if it proves to be the case, that their view of section 41 was in error of law, given the discretionary route to registration and given the Hampson decision. If, within 14 days after receipt of a transcript of this judgment the Appellant adds by amendment to the Notice of Appeal, what we earlier described as the "Abuse of process point", then that point, too, will be permitted by us to go to a full hearing.
- We have looked at the rest of the present Notice of Appeal and, of course, we have heard Mr Uruakpa go through the skeleton argument that he handed in this morning but in most of that skeleton and in most of the rest of the Notice of Appeal, we are unable to find any arguable points of law. A number of the paragraphs of the existing Notice of Appeal are not proper to go to a full hearing and the Notice of Appeal must be amended to strike out those unnecessary passages. Indeed, all the present Notice of Appeal should be struck out, save for paragraphs 16, 17, 19, 20, 22, 23 and 24.
- We are not to be thought to be holding that those paragraphs disclose arguable points of law, but we do take the view that such points of law as we have expressly permitted to go forward would be better understood if the Appellant is enabled also to refer but to refer only to those paragraphs 16, 1 7, 19, 20, 22, 23 and 24. The Notice of Appeal will require quite substantial amendment to delete as we have indicated and, if thought fit by the Appellants to raise the Abuse of Process point, but, for all that, there will be a full hearing. We would take the view, although we will hear Mr Uruakpa on the point, that Chairman's notes are not here necessary; it is not a case where any oral evidence was received and we would think that half a day would suffice, but we will hear Mr Uruakpa on the two points I have just mentioned, the Chairman's notes and time estimate.
