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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ansar v Lloyds TSB Bank Plc & Ors [2006] UKEAT 0609_05_1407 (14 July 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0609_05_1407.html Cite as: [2006] UKEAT 609_5_1407, [2006] UKEAT 0609_05_1407 |
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At the Tribunal | |
On 27, 28, 29 and 30 June 2006 | |
Before
THE HONOURABLE MR JUSTICE BURTON
MR JOHN SHRIGLEY
MR BARRY GIBBS
APPELLANT | |
LLOYDS TSB FINANCIAL SERVICES LTD MS L MOODY MS T DAVIES |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR ![]() (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 |
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:
"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."
"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."
"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."
Recusal
"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."
"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."
"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."
"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."
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.
"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. "
"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."
"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. "