APPEARANCES
| For the Appellant |
MR MOHAMMED ANSAR
(The Appellant in Person) |
| For the Respondents |
MR JONATHAN GIDNEY
(of Counsel)
Instructed by:
Messrs Pinsent Masons Solicitors
Dashwood House
69 Old Broad Street
London EC2M 1NR |
Summary
Appeal, on basis that Chairman ought to have recused himself from pre-hearing review of a second action, because of outstanding complaints against him of apparent bias/alleged misconduct in respect of an earlier hearing between the same parties in the first action, which was being appealed. Neither the existence nor the nature of those complaints made it necessary or appropriate for the Chairman to recuse himself, and there was no merit in the two other points raised by way of challenge to the Chairman's decision on the pre-hearing review. Locabail, Lodwick, Amec and Dobbs in the CA, and the robust approach to recusal applications based upon the existence of outstanding complaints, followed: and dicta in Breeze Benton and Deman disapproved. The careful and proper consideration by the EAT of a bias allegation or a recusal application should not necessarily require, particularly if the EAT Rule 11 procedure was operated at the sift stage, cross-examination or a full, or even a preliminary, hearing and might well be capable of being dealt with under Rule 3(7) and (10) of the EAT Rules.
Burton J:
- This is the second of two appeals, which we heard together, over a period of 3½ days, as between the Appellant, Mr Ansar, and the Respondents, who can be categorised as Lloyds TSB, although in this second appeal (Appeal 2) two individuals, Ms Moody and Ms Davies, are joined as parties in addition to the two Lloyds TSB companies who are Respondents in Appeal 1.
- As we have described in our judgment on Appeal 1, the Appellant brought claims of race discrimination and victimisation, against the two Respondent companies, at the Employment Tribunal at Southampton, which, after a hearing lasting 36 days, resulted in a finding that the Appellant's employer was Lloyds TSB Financial Consultants Ltd, and that none of the Appellant's claims of race discrimination and victimisation, by either Respondent, succeeded. The Tribunal, which presided over that hearing and gave that judgment, was chaired by Mr Kolanko.
- That first hearing commenced on 27 September 2004, and was adjourned part heard on 12 October 2004, to be restarted on 4 January 2005. During that intervening period, the Appellant issued a second action, which is the subject of this appeal. This second action was, by agreement, stayed on 5 January 2005, while the balance of the first hearing was concluded. Judgment in the first action was sent to the parties on 27 April 2005, and the Appellant lodged a Notice of Appeal (Appeal 1) on 28 June 2005.
- Appeal 2 is brought by the Appellant in respect of a pre-hearing review in the second action, held on 3 August 2005. This was a hearing at the Southampton Tribunal of applications by the Respondents for the lifting of the stay and for the striking out of the entirety of the second action. It came before Mr Kolanko, as Chairman sitting alone, after the decision by the Regional Chairman, notwithstanding representations by the Appellant, that it was best for Mr Kolanko to deal, at least with the pre-hearing review at which the lifting of the stay and the strike out applications were to be considered, because, given that the basis of the Respondents' submission was that the content of the second action was or should and/or could have been dealt with at the first hearing, Mr Kolanko was best placed to decide those questions. The Respondents sought to strike out all 21 paragraphs of a letter, dated 29 October 2004, which formed the substantive basis for the second action, to include the dismissal from the second action of Lloyds TSB Bank plc, whose position, as not being the employer of the Appellant, had been resolved at the first hearing, and of a Ms Moody, who had not been joined as a party in the first action, but who had been a material witness, examined and cross-examined during three days of the first hearing (days 23, 24 and 35).
- During the course of the hearing, in which it seems that Mr Gidney of Counsel was considerably tested by Mr Kolanko in the course of submissions, he abandoned a number of his applications for strike out. In respect of the matters left for decision by the Chairman, in reasons he gave in his judgment, handed down on 26 August 2005, he refused to strike out paragraphs 2, 3, 8, 9 and 19 of the letter. He dismissed the Bank and Ms Moody (the claim against whom was contained in paragraph 21) from the action, and allowed the strike out consequently in respect of paragraph 21, and also in respect of paragraphs 16 and 17. The Appellant now appeals: the Respondents have not cross-appealed.
- Prior to that hearing, the Appellant had lodged the Notice of Appeal in Appeal 1, making allegations of bias and misconduct (although not as particularised as they became upon service of his later affidavit) and error of law, with which we have dealt in our first judgment. This Notice of Appeal was, it seems, included in the bundle for the second hearing.
- The Appellant had also written a letter dated 5 July 2005 to the Regional Chairman of the Southampton Employment Tribunal, of which it is accepted the Chairman had notice. Apart from drawing attention to the earlier refusal of witness orders, the letter in terms recited:
"Throughout the full hearing, Chairman Kolanko overlooked numerous instances of serious misconduct on the part of the Respondent which included the breaching of several Tribunal Orders, ignoring disclosure requirements, making dishonest representations to the Tribunal about them and pressurising and victimisation of Claimant witnesses (to which they offered direct evidence). These are only a few examples of the Respondent's misconduct that were raised in open Tribunal
In addition to procedural issues, the Chairman treated Claimant witnesses badly, potentially discriminating against the Claimant's only ethnic minority witnesses by first having their statements almost entirely struck out and secondly reprimanding them when they attended as observers when Respondent witnesses attended as observers and acted in a disruptive manner no comment was made towards them.
Witnesses to proceedings have commented about the unfair and harsh treatment of the Claimant throughout the 64 day hearing [sic]
Having procured an utterly perverse decision with errors in both the application of the law and findings of fact, Chairman Kolanko is now involved in the hearing of the second action 3104051/2004 intending to sit alone on 3rd August 2005 in a pre-hearing review. The Claimant is fearful that the Chairman's apparent bias and previous errors will unfairly prejudice this new action
The paramount concern is that having not only unfairly prejudiced the outcome of the first action, Chairman Kolanko's insistence in still being involved with these proceedings will cause a similar outcome with the second."
- This letter was responded to by the Regional Chairman dated 21 July 2005, which reads in material part as follows:
"In essence, the majority of your letter of 5 July concerns the conduct of the proceedings by the Tribunal in your first set of proceedings. As these are now the subject of an appeal to the Employment Appeal Tribunal, I consider that it would not be appropriate for me to comment and I will consider the matter once the Employment Appeal Tribunal gives its judgment.
The conclusion of your letter and your application relates to your second set of proceedings, namely case no. 3104051/04, in which you have again raised discrimination complaints against Lloyds Bank and others. In essence, you are disappointed that Mr Kolanko is involved in these new proceedings when you have raised issues of bias etc. against him in relation to the first set of proceedings.
The situation is that the allocation of Chairmen to hear cases is a matter for the Regional Chairman and, in carrying out that function, I am not influenced by requests by any party for the case to be heard or not to be heard by any particular Chairman.
In the second set of proceedings there is a Pre-Hearing Review to take place on 3 August to determine applications made, which include applications to strike out the proceedings on the basis that the facts or issues have already been determined in the first set of proceedings.
It appears to me that it is advantageous for the Chairman of the Tribunal that determined the first set of proceedings to deal with the Pre-Hearing Review.
Accordingly, your request for Mr Kolanko not to conduct that Pre-Hearing Review is refused.
Should the proceedings continue beyond that point, then I will give consideration to whether it would be appropriate for Mr Kolanko to continue to hear the case in view of the decisions reached by the Tribunal in the first set of proceedings."
- In addition a letter was sent by the Appellant to the Department for Constitutional Affairs, to which cross-reference was made in the enclosure to the letter to the Regional Chairman: it is unclear if the actual letter was at that stage supplied, although it appears to be common ground that its existence, if not its precise content, was known to the Chairman by the time of the second hearing. This letter, although shorter than that to the Regional Chairman, contained two similar paragraphs to the first and fourth quoted above from the letter to the Regional Chairman, coupled with an additional sentence: "examples of apparent bias and potential impropriety on the part of the Chairman were evident throughout the proceedings".
- We must of course decide the issue as to whether the Chairman should have recused himself at the second hearing on the basis of the facts as then known, not on the basis of the findings we have now made in Appeal 1, dismissing the allegations. Conversely, although we agree with the order Judge McMullen QC made on 8 March 2006 that these two appeals should be heard together, we cannot agree with his expressed opinion in paragraph 3 of his judgment that, if the allegations of bias in the first appeal were upheld, "it would be unlikely that the Appeal Tribunal would consider it was fair for that same Chairman to have conducted" the subsequent PHR in the second action.
- The Appellant's first ground is that Mr Kolanko should have recused himself when, at the outset of the second hearing and as renewed after the short adjournment, the Appellant applied to him that he should do so, based upon the fact that he had appealed against his judgment at the first hearing upon grounds, inter alia, of apparent bias, and had made the written complaints to the Regional Chairman and to the Department of Constitutional Affairs, shortly prior to the second hearing. In addition, the Appellant pursued before us two distinct substantive grounds in respect of the judgment on the second hearing: first that the Chairman erred in lifting the stay, as opposed to leaving it in place until after the outcome of Appeal 1, and, secondly, in striking out paragraph 21 and dismissing Ms Moody from the second action on the basis that (paragraph 30 of the judgment):
"complaints which Mr Ansar brings against Lisa Moody were either determined in the first proceedings as discrete findings of fact or should have been raised within those proceedings as specific acts of discrimination in their own right. It would, I judge, be an abuse of process and oppressive to Mrs Moody to allow these matters to be in large measure repeated within the second proceedings."
- We shall deal first with the main issue as to whether the Chairman erred in law in not recusing himself in the light of his knowledge of the Notice of Appeal and the complaints. We shall deal separately with the two independent points of appeal, although they must be considered as part of our overall conclusion, in case it should be that we decided that the way in which the Chairman dealt with the two impugned matters reflected on the recusal issue, by amounting to "something more": see paragraph 21 of the judgment of Pill in Lodwick v Southwark LBC [2004] ICR 884 at 891, discussed below.
Recusal
- Judge McMullen QC incorporated into his judgment on 8 March 2006, when adjourning this appeal, the submissions of law carefully and convincingly set out by Mr Gidney in his skeleton argument on that occasion, which were accepted both as common ground between the Appellant and the Respondents, and as accurately summarising the correct law to apply, drawn as they were was from the Court of Appeal authorities there referred to of Locabail (UK) Ltd v Bayfield Properties Ltd [2000] IRLR 96, Bennett v Southwark LBC [2002] ICR 881 and Lodwick. For ease of reference, and with further approval, we set out the eleven propositions (slightly reordered) below:
"1. The test to be applied as stated by Lord Hope in Porter v Magill [2002] 2 AC 357, at para 103 and recited by Pill LJ in Lodwick v London Borough of Southwark at para 18 in determining bias is: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased.
2. If an objection of bias is then made, it will be the duty of the Chairman to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance: Locabail at para 21.
3. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour: Re JRL ex parte CJL [1986] 161 CLR 342 at 352, per Mason J, High Court of Australia recited in Locabail at para 22.
4. It is the duty of a judicial officer to hear and determine the cases allocated to him or her by their head of jurisdiction. Subject to certain limited exceptions, a judge should not accede to an unfounded disqualification application: Clenae Pty Ltd v Australia & New Zealand Banking Group Ltd [1999] VSCA 35 recited in Locabail at para 24.
5. The EAT should test the Employment Tribunal's decision as to recusal and also consider the proceedings before the Tribunal as a whole and decide whether a perception of bias had arisen: Pill LJ in Lodwick, at para 18.
6. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without something more found a sustainable objection: Locabail at para 25.
7. Parties cannot assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case. Something more must be shown: Pill LJ in Lodwick above, at para 21, recited by Cox J in Breeze Benton Solicitors (A Partnership) v Weddell UKEAT/0873/03 at para 41.
8. Courts and tribunals 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 (or stay) cannot: Sedley LJ in Bennett at para 19.
9. There should be no underestimation of the value, both in the formal English judicial system as well as in the more informal Employment Tribunal hearings, of the dialogue which frequently takes place between the judge or Tribunal and a party or representative. No doubt should be cast on the right of the Tribunal, as master of its own procedure, to seek to control prolixity and irrelevancies: Peter Gibson J in Peter Simpler & Co Ltd v Cooke [1986] IRLR 19 EAT at para 17.
10. In any case where there is real ground for doubt, that doubt should be resolved in favour of recusal: Locabail at para 25.
11. Whilst recognising that each case must be carefully considered on its own facts, a real danger of bias might well be thought to arise (Locabail at para 25) if:
a. there were personal friendship or animosity between the judge and any member of the public involved in the case; or
b. the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or,
c. in a case where the credibility of any individual were an issue to be decided by the judge, the judge had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or,
d. on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on their ability to try the issue with an objective judicial mind; or,
e. for any other reason, there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues."
- There have been two relevant further Court of Appeal authorities: Amec Capital Projects v Whitefriars City Estates Ltd [2005] 1 AER 723 and the important decision of the Court of Appeal in Dobbs v Theodos Bank NB [2005] EWCA Civ 468, which were not incorporated in that recital of the law, although Judge McMullen QC referred the parties to the latter decision at the end of his judgment, and we shall refer to them below.
- It is worth considering Lodwick in a little more detail. The Court of Appeal decision was, in fact, given on an appeal by the claimant against a decision by the single judge at the Employment Appeal Tribunal, dismissing the appeal, which was based alone on a refusal by a Chairman to recuse himself on grounds of alleged bias, summarily. This summary jurisdiction was exercised pursuant to Rule 3 of the Employment Appeal Tribunal Rules, as they then stood: they have subsequently been amended to give a broader summary jurisdiction to the Employment Appeal Tribunal, and what was simply the power to dismiss (in whole or in part) an appeal on the basis that the Appeal Tribunal did not have jurisdiction to entertain it has now, since October 2004, been broadened to give the power to the Appeal Tribunal to dismiss an appeal which has, in effect, no reasonable prospect of success, because it "discloses no reasonable grounds". The decision of the Court of Appeal was limited to a conclusion that the appeal should not have been struck out summarily, pursuant to Rule 3(7), as it then stood. Pill LJ stated, at paragraph 22 of his judgment, with which the balance of the court agreed, that he "would allow the appeal against the Appeal Tribunal's declining jurisdiction and remit the case to them to determine the issue of bias." As Pill LJ records, in paragraph 4 of his judgment:
"The request for the Chairman to recuse himself was made on the basis that the Chairman had been Chairman of the Tribunal which had heard a case 4 years previously, in which the Applicant had represented one of the parties. The Applicant, who appeared in person before the Tribunal submitted that in the written decision in the earlier case adverse comments had been made about the Applicant's conduct of the hearing and costs were also awarded against the party whom he represented."
- It was in that context that, by reference to the dictum of Lord Bingham CJ in Locabail, at paragraph 25, recited as proposition (6) above, Pill LJ said as follows at paragraph 21:
"A party cannot normally expect a judge to recuse himself because the judge has previously made adverse comments about him, in the course of a case or cases, though the circumstances of each situation will need specific consideration. Neither can parties assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case. Something more must be and, it is claimed in this case is, shown."
- It is not clear what it is that was before the Court of Appeal which was said to amount to this something more, but in any event the case was remitted back to the Employment Appeal Tribunal to see if there was something more.
- When the case was remitted to the Employment Appeal Tribunal, after a very full consideration, as appears from the judgment, which I gave as the unanimous decision of the Panel over which I presided, on 13 June 2005, UKEAT/0116/05/DA, there was, in fact, nothing materially more to discover than had been known to the Court of Appeal, and, in fact, on detailed analysis of the hearing, because Mr Lodwick asserted that some inference could be drawn from the way that the hearing was handled by the Chairman after he had refused to recuse himself, we were entirely satisfied that the case of apparent bias had no substance whatever.
- The first of the two Court of Appeal authorities to which we have referred in paragraph 14 above is Amec. This was in fact an appeal from a judge of the TCC, relating to the alleged impropriety of an adjudicator continuing to sit in a construction adjudication where the adjudicator had previously made an award in favour of the one party against the other. Dyson LJ said (at paragraph 21) that "the mere fact that the tribunal has decided the issue before is therefore not enough for apparent bias. There needs to be something of substance to lead the fair minded and informed observer to conclude that there is a real possibility that the tribunal will not bring an open mind and objective judgment to bear. As was said in the Locabail case, the mere fact that the tribunal had previously commented adversely on a party or found his evidence unreliable would not found a sustainable objection. On the other hand, if the tribunal had made an extremely hostile remark about a party, the position might well be different. Thus in Ealing London BC v Jan [2002] EWCA Civ 329, this court decided that the judge should not hear the retrial of proceedings where he had twice said to the respondent in preliminary proceedings that he could not trust him 'further than he could throw him'."
- The decision of the Court of Appeal in Dobbs is of particular relevance, as it related to an application for recusal because of criticism directed at Chadwick LJ personally, and made by way of complaint to the European Court of Human Rights in Strasbourg. Chadwick LJ, in giving the judgment of the Court of Appeal on preliminary issues, on 15 April 2005, records the criticism which Mr Dobbs informed the court he was making in those proceedings in Strasbourg (at paragraph 6):
"He tells
us that his criticisms are directed, in particular, at me personally. That, he says, stems from my conduct in relation to a hearing on an application for permission to appeal on related proceedings
7. It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course, because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judges were to recuse themselves whenever a litigant whether it be a represented litigant or a litigant in person criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases, simply by criticising all the judges they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticised - whether that criticism was justified or not."
- In the course of argument the Appellant accepted this proposition, but he submitted that:
21.1 This ought only to apply if there was some suggestion that, in an instant case, such was indeed part of a tactic to form part of judge-shopping.
21.2 There is a difference in a situation where the complaint or allegation is one of erroneous decision making or perversity, as opposed to where the complaint is one of bias.
- We do not accept either of these propositions. First, it is quite clear that it is not suggested in this case that what the Appellant is doing is part of any overall tactic, but the application of Chadwick LJ's approach, which is entirely consistent with the earlier Court of Appeal decision in Locabail, is that, as a matter of policy, courts should not yield too easily to applications for recusal, because of the inevitable knock-on effect which Chadwick LJ described. Even if it is appropriate for one judge to recuse himself because of the particular nature of the complaint made, it must not and cannot become a principle that every judge must recuse himself simply because a complaint is made. We shall return to this aspect below. Secondly, we do not accept that there is a distinction between a complaint that a judge or tribunal can, and has, acted perversely in reaching an earlier decision hostile to the party making the application for recusal, and one where the complaint is of bias or misconduct in so doing. If the objection is, as it is, based upon whether the "fair minded and informed observer [would] conclude that there is a real possibility that the tribunal will not bring an open mind and objective judgment to bear" then there must be something of substance to cause that observer to reach that conclusion. In our judgment, it is not necessarily more likely that a judge will be concluded to have a closed mind if he is accused by the party in front of him of having previously been biased, than if he is accused by that party of having made a decision which is so stupid that no reasonable person could possibly have arrived at it.
- We turn then to the dicta of Cox J in the case of Breeze Benton Solicitors, referred to in proposition 7 above. This was a decision by the Employment Appeal Tribunal upon which the Appellant places reliance. The facts in that case were that a Chairman was asked to recuse himself by an employer who had, in respect of a hearing a year before, made a complaint to the Regional Chairman and the Lord Chancellor's Department, as to the Chairman's conduct of that hearing. Cox J at paragraph 12 recites the content of the relevant affidavit:
"In his affidavit Mr Reilly alleges that, during the discussion which took place between them and before any evidence was called in the case, the Chairman made a number of disparaging remarks about both him and the Respondent firm. In particular, it is said that the Chairman stated that he was surprised that the Respondent was still in business; that he suggested that the claims were only being defended because the Respondent was in financial difficulties and shortly to become insolvent; and further that he said he found the behaviour of the Respondent and of Mr Reilly difficult to understand, unprofessional and not the conduct of a solicitor. The Chairman does not accept that he made these comments and we shall return to this dispute later.
13. As a result of the Chairman's conduct towards him during this preliminary period, Mr Reilly states that he considered these comments to be entirely prejudicial to the Respondent's position and that his role as an advocate in the case had been undermined.
"
- Cox J also pointed out (at paragraph 48 of her judgment) that, after the earlier hearing, the tribunal had found Mr Reilly's conduct to be vexatious, that is pursued for an improper motive amounting to an abuse of the procedure, expressing itself in what Cox J described as "trenchant and critical terms". Breeze Benton is not of course binding on us, although we, as always, pay due regard to another decision of this Appeal Tribunal, but what we entirely disagree with, and indeed regard as inconsistent with authority - although particularly inconsistent with what is in fact later authority, namely Dobbs, which, for that reason, could not be put before Cox J - is what the learned Judge said at paragraph 47, namely:
"Secondly, the very fact that Mr Reilly had complained about the Chairman's conduct made it inappropriate that the Chairman should sit. The significance of the complaint lay in the fact that it had been made and that the Chairman knew that he had complained and was aware of the specific allegations made about his conduct."
- It was that dictum which appears to have influenced Judge McMullen QC in a judgment he gave on 29 September 2005 on a Rule 3(10) application in Deman v AUT UKEATPA/0666/05, when he said, at paragraph 11, as follows:
"11. I have been made aware today of the complaint which is sought to be made against me. I understand that the complaint was made some time ago but while the Court of Appeal was seised of the matter, steps were no longer being taken. The Court of Appeal (
) refused leave to Mr Deman to appeal against my judgment and refusal to review it, dismissed his allegation of bias as totally without merit and imposed the civil restraint order. According to the letter, the complaint to the Lord Chancellor will now be re-activated; and so I am in the same position as the Chairman in the Breeze Benton case.
12. It seems to me that given the very long procedural history of this case, if there is a possibility that the matter can be handled by another judge, it ought to be taken rather than any distraction be introduced into the merits of Mr Deman's case by consideration of whether or not he is having a fair hearing
14. It seems to me that no harm will be done by my standing aside from this case. "
- We respectfully but firmly disagree with that approach, and we note that it was Judge McMullen QC himself who drew the attention of the parties in this case to the Court of Appeal's judgment in Dobbs, which had not been cited to him in Deman.
- In this case, we must, as we stated in paragraph 10 above, look at what the position was when this application for recusal was made. There was an outstanding complaint (in the two letters, as in Breeze Benton, both to the Regional Chairman and to the Department of Constitutional Affairs), and in the Notice of Appeal, of bias and/or misconduct against Mr Kolanko as Chairman of the very recent 36-day hearing. Those allegations had not been, and could not be, until the hearing of the appeal which has only now taken place, resolved. What was necessary was to look at the nature of those allegations, and to see whether their making rendered it inappropriate for the case to proceed within the confines of the authorities to which we have referred. The nature of the allegations may, on occasion, be decisive, although it does not follow that, even if an allegation of wholly outrageous conduct, such as the taking of a bribe, were made, that that would necessarily qualify as a ground for recusal, if it was manifestly fanciful or unfounded. But the allegations in this case were in any event not of that kind. We have analysed them in detail in our first judgment, and found that they are without substance, but even at a time when they had not yet been adjudicated , it could be seen that they fell into the three categories which we have described in paragraph 31 of that judgment: criticism of the allegedly one-sided approach of the Chairman to the making of directions or orders, the conduct of the hearing and the control over leading questions and cross-examination, the exemplars being given amounting to a smattering of alleged occasions over a 36-day hearing, with "one of the clearest examples of apparent bias" being said to be that on one occasion, while Counsel for the Respondent was on his feet and it was intended to take a mid-morning break, it was at that Counsel that the Chairman nodded to indicate a suitable time to rise.
- We have no doubt whatever that the Regional Chairman was correct not to respond to the Appellant's application, prior to the hearing, to alter the Chairman, and to direct the Chairman to sit, and that the Chairman was correct to form his own conclusion that he was not obliged to recuse himself. The Appellant pointed out that two of the matters mentioned by Cox J in Breeze Benton were satisfied, namely the factual connection between the two hearings was similar, and the fact that little time had passed. However Amec makes clear that it may well make no difference even if the factual matrix of the two hearings is identical, and as for the passage of time, this is not a case, as in Lodwick, where any issue relating to the passage of time would be relevant. In our judgment, the existence of the complaints, and the nature of those complaints, did not render it necessary or appropriate that the Chairman should stand down or decline to hear the case; and there was nothing more (to import the Locabail and Lodwick enquiry).
- As in the remitted EAT hearing of Lodwick, in case something might be derivable from the hearing which the Chairman then continued, having declined the recusal application, to hear, we have, at the Appellant's request, then considered that hearing - and he has of course two independent grounds of appeal (only those being pursued from the various other matters mentioned in the appeal documentation) - to see whether they themselves evidence something more, quite apart from whether they have any independent arguability (see paragraph 12 above).
- So far as the hearing is concerned, it is clear that on a number of issues the Appellant succeeded (see paragraph 5 above), quite apart from the fact that it seems that Mr Gidney recognised the need to withdraw a number of his applications after finding resistance from the Chairman in the course of submissions.
- As for the two particular points now left by way of independent grounds of appeal, the first is that the Chairman should not have lifted the stay placed on the second action, now the first action had concluded. We have no doubt that the decision to lift the stay was correct, and in any event that such decision was well within the proper discretion of the Chairman and certainly does not amount to any indication of bias. The first action had now ended, subject to appeal, and there was nothing to hold up the listing of the second action, which had been specifically brought by the Appellant upon the basis that, on his case, it dealt with issues which either had not or could not have been included in the first action: and it was important in the circumstances to make up for lost time. The fact that an appeal was outstanding could not be a justification for delay, and in the event, as might perhaps have been anticipated, such appeal has only now been resolved: and there would have been nothing to prevent the resolution of the second action in the meanwhile. The only argument which the Appellant put before us is that there could be some overlap between the two actions, but that appears to us to be inconsistent with the very argument which he successfully put forward at the hearing (and is pressing before us in respect of Ms Moody) that the issues in the second actions were divorced from the first, such as not to offend against the principles of issue estoppel and/or abuse of process.
- So far as the application of those principles is concerned, the Chairman, with his full knowledge of the issues and the evidence in the first action, concluded that, in respect of a number of claims (as referred to in paragraph 5 above), the Appellant was to be permitted to continue to run them in the second action, because they did not offend against either principle. However, in relation to the case against Ms Moody, as set out in paragraph 21, he concluded otherwise. He sets out his reasoning in full in paragraph 30 of his judgment, which we find persuasive and convincing, and with which the Appellant did not seek in any material way to engage before us. We conclude that there is no error of law, nor indeed any indication of bias, in the Chairman's conclusions as to which issues did (e.g. Moody), and which did not, fall on the wrong side of the line.
- We are accordingly satisfied that there is no substance in the challenge to the fact that the Chairman did not recuse himself at the second hearing. As in any other bias-based appeal in the Employment Appeal Tribunal, we must consider the facts carefully, and have done so, and, as when Lodwick was remitted to the employment tribunal, have complied with what the Court of Appeal, per Pill LJ, required us to do. But we are firmly of the view, having carried out this exercise, that the Employment Appeal Tribunal, in order to perform that careful function, does not need in every case, or even in the majority of cases, to hold a full hearing, let alone to have oral evidence and cross-examination. Provided that the facts are sufficiently clear and/or that, in an appropriate case, the procedure under paragraph 11 of the Employment Appeal Tribunal Practice Direction has been followed at the sift stage, so that affidavits are available from all parties and comments from the Chairman and, if and as appropriate, the members, it will very often be apparent that there are no or no material issues of fact requiring resolution or, at any rate, requiring anything more than careful consideration in order to arrive at a conclusion. That can be done as well at Rule 3 (with, if applied for, a reconsideration under Rule 3(10)) as at a preliminary or full hearing. In this case, we can say that we did not gain anything from the evidence and cross-examination of Mr Sultan, which occurred before Judge McMullen QC when he part heard Appeal 2 and adjourned it, because there was no issue relevant for our decision as to what occurred at the second hearing, and we decided the appeal in the event without calling on the Respondent's Counsel.
- This appeal is dismissed.
