The appellant, a serial litigant, was claiming damages against the Commission for Equality and Human Rights (formerly Commission for Racial Equality), alleging that the Commission repeatedly failed to support litigation on grounds of racial discrimination against a number of academic institutions which had not appointed him to the posts for which he had applied. His claim was struck out at the County Court on the grounds that the appellant had not sufficiently pleaded his case. The appellant first complained that the Judge had dispensed with the lay assessors, who had been summoned to sit with the Judge on the strike out application, meaning that the court was unlawfully constituted and adjudicated without jurisdiction. Second the appellant claimed that there were a series of instances where the Commission had treated him differently or worse than they had treated or would have treated a person of another ethnicity.

Sedley LJ, at the Court of Appeal, ruled that, where the lay assessors were capable of assisting, the judge was required to sit with them, but where there was no such contribution they could make, as in this case, he was not. He then considered the case of Madarassy v Nomura International Ltd [2007 EWCA Civ 33 and agreed with counsel for the respondent that a mere possibility of discrimination was not enough to conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

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Neutral Citation Number:  [2010] EWCA Civ 1279

Case No: B2/2009/2175

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CENTRAL LONDON COUNTY COURT

HIS HONOUR JUDGE COLLINS CBE

WO014375, CL209366 & CL352464

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 16/11/2010

Before :

LORD JUSTICE SEDLEY

and

LORD JUSTICE MOSES

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Between :

Mr S DEMAN (Appellant)

- and -

THE COMMISSION FOR EQUALITY AND HUMAN RIGHTS & OTHERS (Respondents)

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Mr John Hendy QC and Mr Ghazan Mahmood (instructed by Bevans) for the Appellant

Mr Robin Allen QC and Mr Daniel Dyal (instructed by *EHRC, Corporate Law & Governance) for the Respondents*

Hearing date: Tuesday, 26 October 2010

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Judgment

Lord Justice Sedley :

This is the judgment of the court.

1. Before the court are consolidated appeals against two decisions of HH Judge Collins CBE sitting in the Central London County Court. By the first decision the judge held that he was not required by law to sit with assessors in order to determine an application to strike out the claim. The judge himself gave permission to appeal this decision. By the second decision he determined that the claim was untriable and struck it out. Underhill J granted permission to appeal this decision and directed that the appeal be transferred from the High Court into this court.

1. The appeal has been presented and conducted on both sides with exemplary focus and clarity, and we record our debt to both leading and junior counsel for the assistance they have given us.

The claim

1. In this action Mr Deman claims damages against what was the Commission for Racial Equality and is now the Commission for Equality and Human Rights, together with eleven of its officers, five former commissioners and an outside solicitor, for racial discrimination and victimisation over an extended period. The acts or omissions of which he complains are in essence the Commission's repeated failure to support litigation on grounds of racial discrimination against a number of academic institutions which had not appointed him to posts for which he had applied.

1. Mr Deman is a persistent litigant. An exhaustive account of his activity up to 2006 can be found in the judgment of Underhill J, sitting in the Employment Appeal tribunal, in Attorney-General v Deman [2006] UKEAT 0113/06/RN, at the conclusion of which the EAT made a limited but indefinite restriction of proceedings order against him. The present litigation escapes this formal stricture, but (as will be seen) it displays once more the vices of prolixity and unsupported assertion which drove the EAT to bring some at least of his activity to a halt.

Should the judge have sat with lay assessors?

1. We take this question first as Mr Hendy has invited us to, notwithstanding Mr Allen's contention that we should first examine the strikeout application in order to see that no evaluation of fact was called for. It seems to us more logical to decide first whether, knowing no more than that a strikeout application was to be heard, the judge was required by law to sit with assessors.

1. There was also, at the material time, a pending application on the part of the defendants for summary judgment which had been stood out and, perhaps advisedly, was not for the time being before the court. Nothing that follows relates to this: it might have raised questions of fact – albeit assumed facts derived from the claimant's pleading – which did require lay assessors.

1. Section 67(4) of the now repealed Race Relations Act 1976 provided:

(4) In any proceedings under this Act in a designated county court or a sheriff court the judge or sheriff shall, unless with the consent of the parties he sits without assessors, be assisted by two assessors appointed from a list of persons prepared and maintained by the [Minister], being persons appearing to the [Minister] to have special knowledge and experience of problems connected with relations between persons of different racial groups.

1. What happened at the Central London County Court on 10 December 2008 was that two qualified assessors had been summoned to sit with the judge on the strikeout application, but the judge, having heard submissions on both sides, discharged them and proceeded to hear the strikeout application on his own.

1. It is common ground that consent to dispensing with assessors, as envisaged by s.67(4), may be given by silence. This had happened on several interlocutory applications in the present litigation. But where, as happened here, one party makes it clear that it does not consent, it is Mr Hendy's primary contention that the court is obliged by law to sit with assessors, and that if it fails to do so it is unlawfully constituted and adjudicates without jurisdiction. He points by way of contrast to the helpfully specific provisions of s.4(1) of the Employment Tribunals Act 1996 which spells out both the general obligation of employment judges to sit with two lay members and the situations in which they need not do so, a specificity notably absent from s.67(4).

1. The purpose of assessors in race relations cases was described by Waller LJ in Ahmed v University of Oxford [2002] EWCA Civ 1907, [2003] 1 ICR 733, §32:

The background to Parliament passing section 67(4) and the language of section 67(4) demonstrate that the court was not intended to have a wide discretion as to whether to use the assistance of assessors. Furthermore, the persons to be appointed as assessors are not scientists or seamen with special expertise in the true sense of that term, but ordinary lay people who have a particular experience in life, an experience which, if it is to be of any real assistance to a judge, involves being able to assess the likelihood of whether some conduct or another is racially motivated. Their expertise (if that is what it should be called) embraces assessing the implications of factual situations, and assisting in reaching a conclusion as to whether racism has played a part. That in our view points to it being the intention of Parliament that in race relations cases judges were to be assisted by assessors in the broadest sense of helping them evaluate the evidence in the area of race relations. The fact that an assessor may be involved in the fact finding role, whether it be of primary fact or by way of drawing inferences from the primary facts, does not mean that the assessor is actually deciding the facts. The ultimate decision has to be for the judge, but section 67(4) requires the judge to use the assistance of assessors unless (as the section provides) the parties otherwise agree.

1. Judge Collins, taking his law from this passage, concluded that the two assessors (who agreed with him) could have no such function on the application which was before him. Mr Hendy's contention is that this was an impermissible and irrelevant inquiry on the judge's part: the Act bound him, whatever he thought of its usefulness.

1. Judge Collins took the view that the s.67(4) requirement did not apply because the material proceedings were not "under" the Race Relations Act: they were under the Civil Procedure Rules. We are not satisfied that this is a correct analysis. No doubt the application itself was made by virtue of the CPR; but the entirety of the claim lay under the Act. What seems to us more to the point is that s.67(4) requires the judge to be "assisted by two assessors". This is not the language of constitutive jurisdiction, laying down when a court is and is not duly constituted. It is more nearly, in our judgment, the language of adjudicative jurisdiction, spelling out how a court is to act in determining certain issues. Thus where lay assessors were capable of assisting – namely where they could contribute "special knowledge and experience of problems connected with relations between persons of different racial groups" – the judge was required to sit with them. Where there was no such contribution they could make, he was not.

1. We note with relief that this legislative provision is now superseded by the Equality Act 2010, s. 114(7), which spells out plainly the meaning that we have extracted from s.67(4) of the 1976 Act. We would suggest, with respect, that the formula used in the latter was productive of uncertainty and should not be used again in legislation.

1. If it is so, Mr Hendy next contends that the judge was mistaken in concluding that the lay assessors could contribute nothing to the determination of the strikeout application. On the contrary, he submits, they might well have been of assistance in deciding "whether the primary facts alleged were sufficiently particular to permit inferences of race discrimination to be drawn", as Ahmed v University of Oxford explicitly envisaged.

1. This might well have been the case (we do not have to decide the point) on a summary judgment application. But striking out in a situation such as this depends on a prior question, namely whether any court, sitting with its lay assessors, could fairly try the case at all – even to the extent of deciding whether to give summary judgment for the defendants - in the current state of the pleadings. That is a judicial function involving no evaluation of the asserted facts.

Was the claim sufficiently pleaded?

1. We turn therefore to the state of Mr Deman's pleaded case. We do not propose to describe it in detail. That was done first by HH Judge Hornby when on 22 February 2008 he adjourned both the application to strike out and the application for summary judgment to allow the claimant what (although he did not make an unless order) was clearly meant to be a last chance to get his pleaded case into a triable state, and again by Judge Collins when he came to determine the application following his discharge of the assessors on 10 December 2008.

1. It is sufficient to say that the case, as it stood before Judge Collins, took the form of draft amended particulars of claim asserting that in a series of instances the defendants had treated the claimant, who is of Indian ethnic origin, differently from and worse than they had treated or would have treated a person of another ethnicity. The defendants had in fact pleaded to this as best they could, but the question of triability hinged on what the claimant himself was asserting.

1. In Madarassy v Nomura International Ltd [2007 EWCA Civ 33, §56, this court, per Mummery LJ, held:

"The bare facts of a difference in status [e.g. race] and a difference in treatment only indicate a possibility of discrimination only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal 'could conclude' that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination."

1. We agree with both counsel that the "more" which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be furnished by non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred. But this is neither of those cases.

1. It is relevant first to note a submission made by Mr Allen for the defendants which has a bearing on this aspect of the case. The functions of the CRE were defined by s.66 of the 1976 Act. Its first two subsections provide:

Assistance by Commission

(1) Where, in relation to proceedings or prospective proceedings under this Act, an individual who is an actual or prospective complainant or claimant applies to the Commission for assistance under this section, the Commission shall consider the application and may grant it if they think fit to do so—

(a) on the ground that the case raises a question of principle; or

(b) on the ground that it is unreasonable, having regard to the complexity of the case, or to the applicant's position in relation to the respondent or another person involved, or to any other matter, to expect the applicant to deal with the case unaided; or

(c) by reason of any other special consideration.

(2) Assistance by the Commission under this section may include—

(a) giving advice;

(b) procuring or attempting to procure the settlement of any matter in dispute;

(c) arranging for the giving of advice or assistance by a solicitor or counsel;

(d) arranging for representation by any person including all such assistance as is usually given by a solicitor or counsel in the steps preliminary or incidental to any proceedings, or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings;

(e) any other form of assistance which the Commission may consider appropriate,

but paragraph (d) shall not affect the law and practice regulating the descriptions of persons who may appear in, conduct, defend, and address the court in, any proceedings.

1. As can be readily seen, the Commission had no obligation to help everyone who applied to it. On the contrary, it had a positive duty to discriminate between one application and another in relation to, among other things, their subject matter and the kind of help that might be appropriate. It might well also have to prioritise meritorious cases in order to stay within its budget. What it could not do, of course, was make its choices on any forbidden basis, race included. But the statutory remit emphasises both the inappropriateness of founding a claim on the bare decision not to give assistance of a particular kind for a particular claim and the centrality of the need, if a discrimination claim against the Commission is to call for an answer, of identifying with some particularity what it is that points to an illicit consideration having entered into the refusal.

1. Here the real-life comparison which Mr Deman has sought to rely on is with a Mr Titterington, a white man, who was on more than one occasion granted financial assistance, albeit retrospectively, for claims similar to Mr Deman's against academic institutions. But when one turns to §36 of Mr Deman's own pleading one reads:

"The Claimant acknowledges that in respect of some of the [seventeen] cases referred to above the CRE gave him legal assistance and/or representation to an extent."

It is not possible to extract the beginnings of differential treatment as between the claimant and Mr Titterington from this or from any of the supporting or surrounding material.

1. Mr Hendy in his skeleton argument lists a series of factors which he contends supply, or are capable of supplying, the "more" which the law requires. They are for the most part failures of the Commission to provide information or to respond to letters or requests. Of these we say no more than that the demands were part of a barrage of intemperate correspondence to which no organisation, especially one which is publicly funded, can be expected to divert its resources. But the first of them in Mr Hendy's list sets the tone of all of them: it is the questionnaire served by Mr Deman pursuant to s.65(1)(a) of the Race Relations Act. The copy in our bundle peters out in the course of the thirty-second question, but it appears from the CRE's reply that there were over a hundred of them. Mr Hendy has not felt able to draw our attention to a single one which arguably puts its finger on an issue to which the CRE's reply would have been material.

1. Mr Deman's larger contention, however, was that the refusal of more assistance and representation than he was accorded was the product of institutional racism within the Commission in the form of a bias against Indian applicants.

1. Annexed to the Commission's defence in these proceedings were tables of the number of cases between 1998 and 2000 in which representation was granted by the Commission, broken down by applicants' ethnic origin. In 1998, for example, 35 Indian applicants, as well as 2 Bangladeshi, 34 Pakistani and 33 white, were granted representation. No attempt appears to have been made at any stage by Mr Deman or on his behalf to ascertain what proportion of all applicants of those ethnicities the number of grants represented. If it had turned out that, in spite of the absence of significant ethnic or national disparity in the absolute number of grants, the rate of refusal for Indian applicants had been markedly higher than the rate of refusal for others, there might have been something calling for inquiry.

1. But the claim of institutional racism was not pressed even this far. It was throughout based on bare assertion, and Judge Collins was fully entitled to decide that the time had come, after many opportunities to put a coherent case together, to call a halt to it.

1. This is in our view enough to make it clear that the striking out of this claim involved no error of law; indeed, it might have been an error of law not to do so. Mr Hendy has rightly reminded us of Lord Steyn's warning in Anyanwu v South Bank Student Union [2001] UKHL 14, [2001] ICR 391, §24, that in the field of race relations the power to strike out a claim should be exercised in only "the most obvious and plainest cases"; but this is in our judgment such a case.

Conclusion

1. We accordingly dismiss each of these appeals.