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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Rowe v Halsall (t/a Malvern Nursing Home) (Practice and Procedure : Case Management) [2012] UKEAT 0084_12_1010 (10 October 2012) URL: http://www.bailii.org/uk/cases/UKEAT/2012/0084_12_1010.html Cite as: [2012] UKEAT 0084_12_1010, [2012] UKEAT 84_12_1010

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APPEARANCES

 

For the Appellant	MS P ROWE (The Appellant in Person)


 


SUMMARY

PRACTICE AND PROCEDURE

Case management

Disposal of appeal including remission

The Claimant at a rule 3 hearing refused to follow the court's directions and walked out. Her application was dismissed under rule 26. It anyway would have no prospect of success and her conduct amounted to an abuse of the process of the EAT, so the case would have been dismissed under rule 3.

HIS HONOUR JUDGE McMULLEN QC

1. This is a hearing under rule 3(10). It arises out of an appeal by the Claimant against dismissal of her claim at the Employment Tribunal. In Haritaki v South East England Development Agency [2008] IRLR 945 at paragraphs 1-13 I set out my approach to rule 3; it should be read with the Judgment in this case. That approach has been approved by the Court of Appeal in, for example, Hooper v Sherborne School [2010] EWCA Civ 1266. On the sift of this Notice of Appeal, in accordance with Practice Direction 2008 paragraph 9, Supperstone J exercised his power under rule 3(7); he concluded in chambers that the case disclosed no reasonable grounds for bringing the appeal and said the following:

"The Notice of Appeal identifies no error of law. The appellant seeks to review the factual issues that were evidenced and determined by the Employment Tribunal."

2. Where no point of law is found, section 21 of the Employment Tribunals Act deprives the EAT of jurisdiction to hear the case. The Claimant was given the opportunity to amend the Notice of Appeal or to have the case heard before a Judge under rules 3(8) or (10). She has applied under rule 3(9) for a hearing. I thus hear the case on more material than was available to the sift Judge, and I form my own view of the appeal. The question for me is whether there is any or no reasonable ground in the appeal.
3. For the best part of an hour Ms Rowe has directed a torrent of vile abuse. She has thrown a bundle of documents that caused the monitor of my associate's computer to crash on her desk. She has been given a number of opportunities to compose herself by my withdrawing. Her principal complaint was to do with the bundles. I have a bundle of 100 pages, and it has my markings on it. I also have a bundle of 42 pages marked "101-142", which the Claimant has sent in and upon which is written, in her hand, "Please read all the following pages to assess the perversity appeal". The Claimant was immediately distrustful and wanted to see the bundle I had. I made available to her the court's copy, which is of 142 pages; that is, the original bundle plus the pages that the Claimant wished to add. I told her that the documents I had were the same; she did not believe me. I then handed her pages 101-142, with her own handwriting on it; she did not find this acceptable.
4. In order to move matters forward and to try to assuage the Claimant's distrust, I handed her my bundle, which has my marks on it. It seemed to me that this was the only way to try to convince the Claimant that I was not operating on different materials from those that she was operating on. Having adjourned for a few minutes so that she could reflect on this, when I came back in she threw the bundle at my bench, striking my associate's screen and causing her to duck under the desk.
5. I have given her a number of opportunities to address me in relation to her application under rule 3. She has from the back of the court held up a number of documents, but she has not drawn my attention to any specific document that she wishes me to read. Her attitude is summarised in the following comments: "You are a fucking criminal. You are a fucking liar. I have no fight with you, because I'm fighting a losing battle. No black person gets justice". She said I had made up my mind about this case, although I pointed out that I had not said a word about the merits. She was given warnings about her conduct on a number of occasions. I reminded her that I have powers to send her to prison for contempt after a hearing. She herself threatened me with calling the police about my conduct. At the same time, she has abused Employment Judge Forrest, who presided over the three-person Tribunal consisting of Ms Downey and Dr Lewis which heard her case.
6. It is important to note what the Employment Tribunal – and I make the point that this is the three-person Tribunal and not, as the Claimant says, Judge Forrest – said about the Claimant's conduct. Paragraph 9 of the Judgment sent on 5 December 2011 contains a history of the Claimant's failures in relation to the proceedings, and paragraphs 10 and 11 contain the Tribunal's conclusions:

"10. In addition to considering those procedural disputes, the Case Management Discussion before REJ Lee primarily considered an application by the Respondents to strike out Ms Rowe's claim on the grounds that she had been abusive in the conduct of the proceedings. REJ Lee made the following findings:

10.1 'Having heard evidence from Mr Frederick who represented the Respondent at the Case Management Discussion, and from the Claimant herself, and having read a written statement from the Claimant's sister who was present at the discussion, and also having put to the Claimant the various notes contained in the Tribunal's file of telephone calls wherein it is contended that she made allegations of racism against various members of staff and Judges. I find that the Claimant has conducted these proceedings in a scandalous and unreasonable fashion. However, even having found that the Claimant has, on repeated occasions, accused various members of the judiciary, the Tribunal staff and the Respondent's representative of racism, and used racially offensive words to Mr Frederick, who appeared for the Respondent on the last occasion, the issue nevertheless remains of whether it is still possible to have a fair trial. I can only strike out the claim if that is not possible. It seems to me that it is possible to have a fair trial if the Claimant ceases to behave in that fashion. For the majority of today the Claimant has been patient and not aggressive or abusive, although there have been times when she has interrupted, tried to talk over others and instructed others, including me, to listen to her. Also she raised her voice in an angry fashion when cross examining Mr Frederick. Despite that, it is my view that, if for the future the Claimant conducts the proceedings appropriately, a fair trial is still possible.'

11. On balance, and in the exercise of her discretion, REJ Lee decided that a fair trial of the issues was still possible and declined to strike out Ms Rowe's claim. However, she gave Ms Rowe what amounted to a final written warning about her conduct:

'The Claimant has been told and should be under no doubt that any repetition at all of indiscriminate and unfounded allegations of racism, or of the intemperate use of language, will lead to the question of whether a fair trial is still possible being immediately reconsidered.'

We had to remind Ms Rowe of that final warning during our Hearing, when she was abusive to Mr Edwards, calling him a 'liar', when all he was doing was properly presenting a reasonable point on behalf of all the Respondents. Ms Rowe composed herself and apologised. On a number of occasions, we also adjourned the Hearing for brief periods to allow Ms Rowe to compose herself, so that she was in a proper state to continue. She was advised frequently to slow down and to consider her answers."

7. The Claimant lost every point bar one. The Respondent's contention that she had not acted in good faith for the purposes of a claim under the Public Interest Disclosure Act provisions was rejected. The Tribunal held (see paragraph 94) that she was misguided, that she was not a credible witness of fact, but it could not be said that her claim failed for want of good faith.
8. She went back to the Employment Tribunal for a review, which was refused by Judge Forrest, on the ground that it was out of time and he refused to exercise his discretion to extend time since it was not just and equitable to do so. The appeal is against both that and the substantive Judgment. I have not had the opportunity to take the matter further, since the Claimant has given me no (legal) argument this morning.

Rule 26

9. During the course of the hearing, in the midst of the abuse the Claimant was hurling, I gave directions as to the way in which the case should proceed, which is that she could use my bundle, she could use the court bundle, she could use her own bundle, and she could direct me to any particular document she wished; she has done none of those and has walked out. In the circumstances, I consider this is a case in which the power under rule 26 should be exercised. The Claimant has failed to follow clear directions for the conduct of this hearing. It is the same kind of conduct noted by the Employment Tribunal (above). She has made a fair hearing impossible. I will therefore dismiss the appeal under rule 26.
10. Lest I be wrong in the exercise of that discretion, on the material available to me it appears that this case has no substance. I am not alone. The Claimant was offered, in accordance with the practice of the EAT, the services of counsel giving her time for nothing under ELAA Scheme. The Claimant told me on my asking that she had had an opportunity to discuss the matter with counsel. I did not ask her any more than to assure myself that she had had that opportunity and that she was now to conduct the case herself. But she said her counsel had told her that there was no point of law. From the back of the court the Claimant has also told me she has been to a number of solicitors, none of whom will take her case.
11. From my preliminary reading of the case, it appears to me that Supperstone J was right. I have looked at the skeleton argument that the Claimant has produced. She does indeed raise issues of fact, and I can see no error in the way in which the Employment Tribunal made findings in her case. These were essentially fact-sensitive issues, and the Tribunal has directed itself correctly in relation to the claims that she made.
12. During the course of her abuse the Claimant accused me, Judge Forrest and every other Judge of racial bias because she is black. This case is one that follows the pattern of Horsfall v Calderdale & Huddersfield NHS Foundation Trust UKEAT/0292/11, where I said the following:

"1. This Notice of Appeal is brought by the Claimant in proceedings against a Judgment of an Employment Tribunal chaired by Employment Judge Hepworth, with Mr Dowse and Mr Lyons, sitting at Leeds over 16 days, including a reading day at the outset, registered with Reasons some date thereafter. The Judgment extends for 43 pages. On the sift Bean J said this:

'This case is a classic of its kind; a 13 day Employment Tribunal Hearing of a discrimination claim in which the Applicant seeks to complain of incidents going back up to seven years, accuses everybody in the case of racism, bullying and lying, loses in the Employment Tribunal and in the Grounds of Appeal, challenges just about every factual conclusion on the grounds of perversity. I am ordering a Preliminary Hearing, rather than giving a Rule 3 direction, only because in my view cases of this kind should be heard by an EAT of three members, rather than a judge alone.'

2. To extend Bean J's language, what makes this "a classic deluxe case of its kind" is the allegation of bias and apparent bias against the judge.  As to that, Bean J caused an affidavit to be adduced on behalf of the Claimant and answers to be given by the judge and the members. That has been done, together with some contribution from the Respondent's team."

13. My approach to this application has not been affected by the Claimant's race but only by the fact that she had raised and lost a number of claims before the Employment Tribunal and appeals them. I simply have not had the opportunity to hear from her on the substance of her appeal. In the light of what she writes, it would be necessary for her to address me, because I do not consider in her skeleton argument there is a reasonable prospect of success. I agree with Supperstone J, and the Employment Tribunal. It was open to Employment Judge Forrest to refuse an extension of time to review the Judgment on the ground that it was not just and equitable to do so.
14. Further, I consider that from the proceedings this morning, informed as they are by the experience of Regional Employment Judge Lee and the Employment Tribunal under Judge Forrest, to send this matter forward would be an abuse of the process of the EAT. She was given warnings about her abusive conduct by the Employment Tribunal. The Claimant is plainly using it as an opportunity to expose the wider wrongdoings, as she sees it, of the employers. She has told me she is going to the press, and she is going to take Judge Forrest's signature and publicise on the internet so he can be exposed. This is a collateral purpose and is an abuse of the process of the EAT. I make this Judgment irrespective of the merits of the case, for a case will not go to a full hearing under rule 3 if it is an abuse of the process of the EAT. For that reason too I would dismiss the application, and with it the underlying appeal.
15. I would very much like to thank the security staff and the court staff for the calm way in which they have dealt with the difficulties this morning. The application is dismissed.