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Neutral Citation Number: [2010] EWCA Civ 480

Case No: A2/2009/1625

Case No: A2/2005/2750/A

Case No: A2/2006/0201/A

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

UKEATPA002008

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 30/04/2010

Before :

LADY JUSTICE SMITH

**

Between :

Mr E A E Edem (Appellant)

- and -

Egg PLC and Ms Jo Croft (Respondent)

(Transcript of the Handed Down Judgment of

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The Litigant Appeared in Person

Hearing dates : 15 & 27 April 2010

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Judgment

As Approved by the Court

Crown copyright©

Lady Justice Smith:

1. There are two applications before the Court. Both arise out of litigation which the applicant has pursued since 2004 which arises out of his employment with EGG PLC. The first in time is a renewed application for permission to appeal the order of Keith J made in the EAT on 7 October 2009. The application for permission was refused by Arden LJ after consideration of the papers and is renewed on oral application. The second application which was lodged on 13 April 2010 is an application pursuant to CPR 52 rule 17 to reopen a final order made in the Court of Appeal in 2006.

1. In 2004 and 2005 the applicant brought three separate claims in the employment tribunal, all arising out of his employment with Egg PLC. The first, filed on 21 May 2004, did not reveal a clear basis of claim. It alleged that he had been suspended and subjected to disciplinary proceedings. He had lodged internal grievances and harassment allegations and was dissatisfied with the way in which they were handled. It was later treated as being based on race discrimination. The second claim, filed on 20 October 2004, alleged ongoing race and sex discrimination, unfair constructive dismissal and the non-payment of various sums allegedly owed. The unfair constructive dismissal related to events in July 2004. The third claim, filed on 11 March 2005, alleged unfair dismissal (he had been dismissed in December 2004) which he said was as a result of sex and race discrimination. He also claimed various unpaid sums allegedly due to him. The claim forms were accompanied by very long documents in which the applicant described his complaints. The third claim also named the applicant’s line manager Ms Jo Croft as a respondent. The respondents denied all the allegations.

1. On 21 March 2005, the ET conducted a pre-hearing review and heard an application by the respondents to strike out the whole of the first claim for failure to comply with the ET’s orders for further particulars and also considered of its own motion why parts of the first and second claims should not be struck out as misconceived. By decision promulgated on 12 April 2005 the ET ordered that the complaints relating to unlawful deductions from wages and unfair constructive dismissal should be struck out from the second claim and that the first and second claims would be consolidated and would proceed as complaints of race and sex discrimination. The third claim, which had only just been filed, was to be consolidated and was to proceed as alleging continuing acts of race and sex discrimination culminating in dismissal on or about 13 December 2004. Full reasons were given for these decisions and directions were made for the future conduct of the consolidated claim. These included orders in respect of disclosure of documents and the preparation of bundles by 2 May 2005. There was to be exchange of witness statements within 21 days thereafter. The ET anticipated a hearing during September of October 2005.

1. That did not happen because the applicant tried to appeal the ET’s order striking out some of his claims. In January 2006, the EAT presided over by HH Judge Reid dismissed the appeal save that it reinstated a small claim relating to unpaid travel expenses. Dissatisfied with that result, the applicant sought to appeal to this court but, on 31 March 2006, Arden LJ refused permission to appeal. Her judgment dealt with several issues, in particular the striking out of the claim for unfair constructive dismissal in July 2004. Her order simply dismissed the appeal. However, her judgment contained the following words as the last paragraph:

“At the request of Mr Edem, I would add that I have not dealt with anything arising out of the third claim because, as I understand it, from the order of the tribunal, there was nothing in it that was affected by the order of the tribunal.”

1. The applicant then tried to appeal that refusal to the House of Lords. This attempt was misconceived as the House of Lords had no jurisdiction to entertain an appeal from the refusal of permission to appeal to this court. Unfortunately, the application was not definitely rejected until March 2007. Thereafter, the applicant sought to take his case to the European Court of Human Rights in Strasbourg but was told that his application was out of time. I will return in due course to consider the applicant’s position in respect of the struck out claims.

1. I return to the position of the ongoing claims after the decision of Arden LJ when the ET wished to progress to a hearing of those issues which had not been struck out. There was further delay after the hearing before Arden LJ because the applicant was pursuing other ET claims and was involved in appeals to the EAT. Preparation for the hearing of the outstanding claims was not resumed until August 2007. By letter dated 31 August 2007, the employment judge convened a case management discussion for 17 September. The applicant said that he would appeal that order and would not attend the discussion. The employment judge had to threaten that if he did not do so his conduct would be deemed unreasonable and his claims would be struck out.

1. In the event, the applicant did attend. He opposed the advancement of these claims, alleging that he was too busy with other claims and appeals. The employment judge insisted that preparation for the hearing must be resumed. He recorded that the applicant’s conduct at the meeting was unreasonable in several respects, at times bordering on contemptuous. Among other things, the applicant made submissions of fact which, on examination turned out to be untrue. He was again threatened that if he did not cooperate, his claims would be struck out. Various directions were given and were backed by unless orders.

1. By September 2007, the respondents had done much to comply with the orders made in April 2005. They had prepared trial bundles. The new order required these to be served on the applicant by 12 October 2007 after which time the applicant had 2 weeks in which to supply a list of any additional documents he wanted to have included. Witness statements were to be exchanged by 1 February 2008. The judge also ordered Mr Edem to provide a schedule of the losses he would claim. Time limits were imposed.

1. By letter dated 26 October, (the date by which Mr Edem should have dealt with documents) he sought ‘clarification’ from the judge as to the meaning of the order relating to the provision of documents for inclusion in the bundle. By letter dated 21 November 2007, the judge refused to provide such clarification.

1. When Mr Edem supplied the schedule of loss in preparation for the hearing, the respondents took the view that some of the items claimed were not relevant to the remaining live claims and sought clarification from the judge as to which claims remained outstanding and which had been struck out. The judge confirmed the position by letter dated 21 November 2007.

1. Mr Edem sought to appeal to the EAT the two decisions of the judge made on 21 November 2007. Meanwhile, further orders were made in the ET in relation to discovery and the preparation of bundles as the applicant had not complied with the order for directions. However in due course bundles were prepared and the hearing proceeded on 3 March 2008.

1. The appeal against the two letters dated 21 November, was stayed by the EAT of its own motion because the substantive hearing was taking place.

1. The hearing proceeded over 21 days during March, July and August 2008. All Mr Edem’s claims were dismissed. The decision is long and detailed. For example it dealt individually with 65 complaints of discrimination or harassment or alleged victimisation, rejecting each one. The tribunal found the applicant to be an unreliable and unsatisfactory witness and said that some of his claims had not been brought in good faith. It is important to note that Mr Edem did not appeal that decision.

1. Following the ET’s decision, the EAT lifted the stay on the appeal in respect of the orders of November 2007 and Judge McMullen QC ruled that it had no reasonable prospect of success.

1. Mr Edem sought an oral hearing under rule 3(10) which took place before Keith J. Keith J ruled that an appeal against these orders would have no prospect of success. He said that the judge’s refusal to clarify the order for the preparation of bundles was not at all unreasonable. The original order was clear and it was fair. Also, he held that the letter of 21 November 2007 accurately and properly recorded which of the claims remained live and which had been struck out. An appeal could not succeed.

1. Mr Edem now seeks to appeal that order to this court. Permission was refused on paper by Arden LJ. She observed that the proposed grounds of appeal did not reveal any point of law for consideration by this court. When the renewed application came on before me on 15 April, Mr Edem informed me that, despite many requests, he had never been supplied with a copy of the transcript of Keith J’s judgment. That, he said, was why he had not been able to engage with the reasoning of that judgment. I had noted that Mr Edem’s long skeleton argument related only to the conduct of the proceedings before the ET. I adjourned the oral hearing and ensured that Mr Edem had a copy of Keith J’s judgment. Since the 15 April, the applicant has filed an amended skeleton argument.

1. The skeleton argument comprises a very long account of all the complaints which Mr Edem wishes to make about the unfairness of virtually every aspect of the proceedings. The argument is reminiscent of his conduct of the main hearing as described by the tribunal. He takes a large number of points many of which do not relate at all to the orders under appeal. His arguments are couched in forthright and sometimes offensive language. The line of argument is often difficult to follow. He refers to a number of complaints about the respondent’s conduct of the proceedings and the attitude of the various judges who have dealt with them. None of these raises a point of law which this court could properly consider.

1. In oral argument, Mr Edem first stressed that the case management orders were unfair and the timetable by which he was required to comply was quite unrealistic. The result was that some of the documents he needed for the hearing were not included and he was not allowed to introduce them during the hearing. This was unfair and had prevented him from presenting his case properly. It is true that the tribunal did refuse him permission to introduce some new documents during the hearing, although some were introduced by consent. However, I cannot accept that the pre-hearing process was in any way unfair. Mr Edem had known since April 2005 that he had to prepare documents for the hearing. He was not employed and however busy he was with other litigation he could and should have made time to prepare for the hearing of these matters.

1. His second complaint was that he never had an effective appeal from the judge’s orders of 21 November 2007 because the EAT stayed them until after the substantive hearing had taken place. I can see that, by that time, those appeals were largely academic. But I can also see why it would not have been at all sensible to adjourn the main hearing so as to allow that appeal to proceed first. In any event, if, as a result of the decisions of 21 November, the applicant had been significantly prejudiced, he could have revived the points by appealing the main decision. He did not do so. He said that it would have been pointless. He is right. The tribunal rejected his evidence on every point where it differed from that of the employer. From what he showed me by way of example of the documents he had not been able to use, their introduction could have made no possible difference to the outcome.

1. As his third main point, the applicant raised an issue which I had not fully anticipated from his skeleton argument. He submitted that, because there had been so much confusion about which of the issues had been struck out, some of his allegations had not been tried at all. He made two complaints. First, he had at all times complained about harassment and victimisation as well as race and sex discrimination; yet those aspects of his claims had disappeared. They had not been struck out and had not been left in according to the employment judge’s letter of confirmation dated 21 November 2007.

1. Second, Mr Edem complained that, although at the end of her judgment Arden LJ had sought to clarify the position in respect of the third claim, the employment judge had disregarded her statement that the whole of the third claim remained for consideration as none of it had been struck out.

1. I was puzzled by these two complaints and took time to go back to the documents before giving judgment. I am now satisfied that, however the various claims were described in the pre-hearing orders and whatever Arden LJ was persuaded to say as a post script to her judgment, the tribunal which heard the substantive issues considered each and every complaint raised, some of which were indeed complaints of harassment or victimisation. I am quite satisfied that all issues were covered. This complaint is wholly without foundation.

1. Despite all that Mr Edem has said during this hearing, there is no basis on which this court could interfere with the type of case management orders made on 21 November 2007, which fell squarely within the discretion of the employment judge. No error of law is identified which this court could consider. The first application is refused as being totally without merit.

1. I turn to the second application. This is an application under CPR 52 rule 17 to reopen the decision of Lady Justice Arden in March 2006 when she refused permission to appeal the decision of the EAT in relation to the striking out of several of the applicant’s claims. As I have explained, the applicant then applied for permission to appeal to the House of Lords. In fact that was an error on his part as the House had no jurisdiction to consider the application. However, it appears that the staff at the House of Lords did not immediately reject the application and it was not finally rejected until March 2007. It does not appear that Mr Edem made any enquiries as to the progress of his application. Nor does it appear that he made any enquiries as to the time within which he would have to lodge an appeal to the ECHR. By the time he received his rejection from the House of Lords, it was too late for him to appeal the final decision of March 2006 and his case was not accepted by the Court in Strasbourg.

1. Mr Edem now wishes to reopen his appeal in this court in order to start time running again so that he can take his case to Strasbourg. He is not able to point to any new information or argument to suggest that the decision of Lady Justice Arden was wrong. He merely wants to start time running again.

1. The power of the Court of Appeal to reopen one of its own decisions is to be exercised very sparingly and is designed to remedy cases in which it appears that a significant injustice has occurred. In my view, the applicant is unable to point to any significant injustice. He has lost only the chance of trying to interest the ECHR in his grievances. I would regard his chances of success in the ECHR as remote in the extreme as he has no arguable complaint. In any event, the situations in which the court is prepared to reopen its own decision are rare but, if they arise, are usually due to the court having been misled or having acted under a misapprehension as to the true facts. This power is not designed to remedy the consequences of an error on the part of the applicant in making an application for permission to appeal to the House of Lords for which there was no jurisdiction and which error was unfortunately compounded by an administrative oversight in the House of Lords Office.

1. I reject this second application as being totally without merit.