The facts behind the appeal can be found in the application judgment [here](). In this appeal, Sedley LJ first overturns the decision of Cox J in dismissing the claims as, in relation to the doubts over receipt of the affidavit alleging bias, it

"ill behoves any court to place reliance on doubts brought entirely by the inefficiency of its own office...... The right way to proceed was, in my judgment, on the assumption that the affidavit had indeed been filed in time"

Accordingly, with the affidavit before him he is also in a position to firmly reject the allegations of bias. However, he then goes on to conclude that the ET's judgment had not properly handled the allegations of direct discrimination, which on the evidence before him "looks almost unanswerable" and indirect discrimination and that the decision of Cox J had focussed on the bias issue. It was therefore remitted back to the President for directions.

_____________________

Case No: A2/2009/1371

Neutral Citation Number: [2010] EWCA Civ 763

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

EMPLOYMENT JUDGE COOK

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Wednesday 9th June 2010

Before:

LORD JUSTICE SEDLEY

LADY JUSTICE SMITH

and

LORD JUSTICE LEVESON

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Between:

RUHAZA (**Appellant)

**- and -

ALEXANDER HANCOCK RECRUITMENT LIMITED (Respondent)

• - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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The Appellant appeared in person.

Miss Rachel Levene (instructed by Hammonds LLP) appeared on behalf of the Respondent.

• - - - - - - - - - - - - - - - - - - - -

Judgment **(As Approved by the Court)
**Crown Copyright ©

Lord Justice Sedley:

1. Mr Ruhaza, who has addressed us in person today, is the claimant in a race discrimination claim against an employment agency, represented before us helpfully by Miss Rachel Levene.

1. The claim failed before an employment tribunal chaired by Employment Judge Cook sitting in Manchester. It failed first for want of jurisdiction, the claim having been brought out of time; and secondly, though debatably for reasons that I will be coming to, for want of merit.

1. The tribunal considered itself in a position to make both findings because it had taken the conscientious course of hearing the whole of the evidence before deciding the jurisdictional point. Mr Ruhaza gave notice of appeal. His grounds, which are lengthy, concerned firstly the substantive decision of the tribunal, and, secondly, bias, which Mr Ruhaza alleged the tribunal had manifested in the course of and antecedent to the hearing.

1. Our immediate concern is with the bias allegation, but I should say now that it is far from dispositive of what we have to decide. In relation to it HHJ Birtles in the EAT directed that Mr Ruhaza should swear and file an affidavit verifying the conduct of which he complained, with a copy to the respondent. With the grant of extensions, it was to be filed on or before 23 February 2009.

1. Proof of recorded delivery showed that an envelope from Mr Ruhaza had been delivered to the EAT on 16 February. Mr Ruhaza has since produced an affidavit in support of the allegation of bias sworn before a solicitor on 13 February and has averred that the copy of it was in the envelope. The EAT, for its part, has in its office a record corresponding to Mr Ruhaza's own record of receipt of an envelope from him, but it has both lost the contents of the envelope and failed to record what they were.

1. Mr Ruhaza asserts that he also served a copy of the affidavit on the respondents at the same time. This the respondents deny. They say that they never received it.

1. On Mr Ruhaza's appeal against the striking out of his notice of appeal, or at least of as much of it as alleged bias, for non-compliance with HHJ Birtles order to file an affidavit, Cox J noted that it was not until 8 May that Mr Ruhaza had asserted unambiguously that he had filed his affidavit in time. Before that he had written what Cox J described as a curiously worded email which began: "I admit no failure as claimed, but, even in that event...", and went on to contend that striking out did not necessarily follow. It was in relation to this and to a previous email that Cox J commented (paragraph 23):

"What the Claimant does not say, in either email, is that the Notice of Appeal should not have been struck out in the first place because he had in fact filed a sworn affidavit at the EAT within the time specified."

1. Having set out the rest of the history, Cox J said

"It is unclear whether this affidavit was ever received by the EAT before the copy sent in answer to the request to 11 May."

1. It was, she went on to say, a most unsatisfactory state of affairs. She concluded at paragraph 32:

"In all the circumstances, although there remains some doubt about the matter, I am not satisfied on all the material before me that this Claimant did in fact file the necessary, sworn affidavit at the EAT within the time limit specified. Nor am I satisfied that he served a copy of it upon the Respondent, as required by the original order of HHJ Birtles."

1. Although on consideration of the papers Sir Richard Buxton did not consider this decision appealable, Smith LJ on an oral hearing took the view, which I respectfully share having heard full argument, that Cox J's findings established a real possibility that the affidavit had been filed in time. I do not think that this makes Cox J's finding perverse. It was not a finding to the contrary but a finding only that the matter was shrouded in doubt. What I do think, however, is that it ill behoves any court to place reliance on doubts brought entirely by the inefficiency of its own office. There is no excuse that we know of for the failure of the EAT either to file or at least to record the contents of an envelope which was without any doubt received by recorded delivery from Mr Ruhaza on 16 February. The doubt as to whether it contained the affidavit was entirely of the EAT's making, and I consider that there was no good reason to give the EAT and the respondents, rather than Mr Ruhaza, the benefit of it. The right way to proceed was, in my judgment, on the assumption that the affidavit had indeed been filed in time.

1. This did not of course resolve the further question whether it had also been served on the respondents in time, or indeed at all. All one can say is that that issue remained and remains undecided. But the simple course of concluding that, if it was not filed with the EAT when Mr Ruhaza says it was, then it was probably not served on the respondents either is, for the reasons I have given, not open.

1. For the reasons to which I now turn, however, it is not necessary to make provision for the trial of this issue, as would otherwise have had to be done. The reason is this. The affidavit is now before us. If it had been admitted, as I am entirely prepared to accept that it should have been as duly served at least on the tribunal in time, the question arises whether it was capable of establishing bias. Only if it was would it have called for an answer and a decision on appeal. But in my judgment, having heard Mr Ruhaza on this, the contents of the affidavit do not come close to establishing a case of bias.

1. The bias alleged by Mr Ruhaza is not constructive or apparent bias arising out of some connection with the case or with the party to it; it is actual bias -- that is, manifest hostility to Mr Ruhaza and his claim. When one looks at the affidavit, what it alleges is this:

"a) Regarding the attitude:

11) I have already said that the attitude of the tribunal before and throughout the hearing has shown some frightening conduct. On the conduct of this hearing, Judge Cook asked the claimant to state his case and he proceeded reasonably, taking time to refer to the case papers to which the Judge, looking really irritated, asked the claimant if he was incapable of stating his case without looking into the files. The claimant got intimidated but kept his determination.

12) In the end, the issues advanced, clearly in the pleadings and CMD orders were twisted after a preliminary judgement.

13) I have made points about the judge stopping the claimant when he asked questions to the respondents that were likely to shape the outcome of the case, about the judge stopping the cross-examination by claimant of Liz Hancock, the one of the respondents that gave away the most damaging admissions which the judge chose not to report, knowing that an appeal was inevitable, 15 minutes before scheduled time.

14) The judge, in the closing submissions kept stopping the claimant to confuse him and allowing him back the right to speak. In the end, the claimant was saved by his comprehensive statement which incorporated the legal submissions which appear to have been completely ignored.

15) I have said that I complained about some evidence looking to be not genuine and nothing was done to deal with the issue.

16) The judge while failing to report useful findings of fact, wasted time making false allegations that the claimant had said during the hearing that he trusted no body in relation to his dealings with the respondents, when his statement and documentary evidence clearly set to applaud good recruitment practise and illustrate the bad practises.

17) The actions of the judge are particularly clear though her order to the claimant to disclose a non-essential copy of judgement while refusing to test the authenticity of challenged evidence. Clearly, an adjournment while the respondents were asked to e mail to court the required original evidence could have greatly helped this matter, possibly avoiding the troubles of an appeal. Instead, adjournment was made for the purpose of illegal attempts to discontinue this claim and finding it out of time.

b) Regarding Continuing act:

18) This matter has been proved in my original appeal papers. It was wholly clear in the pleadings but deliberately messed-up by a judge and panel that could not conceivably fail on the subject.

c) Regarding Registration:

19) The same applied as in previous paragraph. The claimant clearly proved his registration via a website. The argument that registration was with website only is too perverse to just be perverse. It was a refusal to exercise judgement, to pervert the course of the hearing.

The confirmation that the registration was complete was signed off by respondents stating their physical address which it is inconceivable to qualify as a wild computer server acting out of control.

No invitation for registration is evidenced and more importantly, it was not extended to the claimant following his initial registration, or on his application in November 2007.

The respondents admitted in their statement that had the claimant really applied for a position in November 2007, they would have sent a standard invitation to register. This is pivotal because, despite evidence going to the panel, pointing to the evidence of the application in November 2007, and the fact that my complaint to the respondents in December 2007 was one month after my application, no invitation to register or any sign that my application had been processed had been seen, the judgement panel found no use in the hearing process by deciding that an invitation to register was sent and ignored. They abused the process, the claimant's rights under domestic and EU laws, the tax funds in respect of the hearings itself and payments for transport and hotel fees paid to litigants just to favour the respondents. This is more than an error, it is criminal and so is the perjury committed by the respondents with a supporting hand of the judgement panel.

d) Regarding legal submissions

20) The only comment that I could say on the judgement on European free movement of labour is that he point by the judge was a clear illustration of a 'Judicial Euro-scepticism' seeking to disregard the single market and reducing the freedom of movement to the mere right to pass a border. The time could not be better to demonstrate the extreme perversity of that finding with the opinions made on the strike actions on the Total facility in Lincolnshire. That is a tribunal that had been warned about their obligations under both domestic and European legislations and the submissions made were clear and justified.

21) I would conclude that reminding the fact in my original appeal papers that the tribunal also made ridiculous findings that I had not made legal submissions, that I had not provided case law when part of this sits in the bundle and was referred to in the statement.

For the purpose intended to this document and all related documents, I certify that the facts brought are true and accurate to my best knowledge and that all representations in the said documents are made in good faith."

1. To these allegations Mr Ruhaza has added paragraph 4 of the affidavit, which reads:

"I confirm that this statement will be a compliment of the appeal grounds ..."

This, he submits, introduces the lengthy manuscript appeal grounds as having been verified by affidavit. I doubt whether this would do, but, accepting it for the moment, it takes us back, he says, to paragraphs 20 and 21 of those written grounds. These read:

"20. Even more relevant, we can see on page 269 that Judge J Russell was anxious to stress how tricky the case could be and tried to emphasise the importance of legal representation.

1. That may seem reasonable but in my past dealings I have never seen a judge trying to advise me the case as was done here."

1. The passage, far from demonstrating bias, appears to me to demonstrate the very reverse; it demonstrates a concern on the part of the tribunal to ensure that Mr Ruhaza's case was put at its best. If I may say so, his performance before us today has demonstrated why: Mr Ruhaza does not focus on issues; he tends to depart from them and to spread, rather than concentrate, his arguments. He would do well to accept the advice he was given. It was given in any event at a case management hearing well before the decision of which he complains in the tribunal itself.

1. He goes on to draw attention to what he calls a scandalous episode when HHJ Russell, he says, put the phone down on the claimant and asked his assistant whether Mr Ruhaza has been here before, to which an answer was given, and heard and reported by the respondents, in the form of "Oh yes". Mr Ruhaza is a repeat litigant; he has made no secret of that, and it is something which has got to be taken into account in deciding, for example, whether he is capable of understanding what is going on in tribunal proceeding.

1. Neither these allegations nor those set out in the affidavit to which I have referred at paragraphs 11 to 20 come close to demonstrating any form of hostility to Mr Ruhaza or his case. They demonstrate, if taken at face value, an understandable impatience at times with the way in which Mr Ruhaza was going about presenting his case; but I am afraid a litigant in person (and not only a litigant in person; counsel and solicitors too) have to live with the fact that tribunals have limited time, sometimes limited patience, and a need to make sure that what time they have is devoted to concentrating on the issues.

1. These were therefore, so far as they were manifestations of attitude, not objectionable; and, so far as they were procedural decisions, entirely within the competence of the tribunal and open to appeal, if at all, only on ordinary grounds of law.

1. For the rest, it was for the tribunal to manage the case in a way that was fair to both parties, not only to Mr Ruhaza, and was economical of time and resources. It is a common occurrence that litigants believe that any decision that goes against them is the product of bias when, more probably, it is the product of a measured judgment which, understandably enough, they disagree with. But, taking the whole of Mr Ruhaza's complaints in the affidavit and incorporated by reference in the affidavit against the tribunal's decision, they come nowhere near demonstrating a preconceived hostility to Mr Ruhaza.

1. Although these reasons differ from those of Cox J, they would by themselves lead to my supporting her conclusion. But they do not stand by themselves, and this is where the real problem has emerged before us today.

1. The bias allegation was only part of the grounds of appeal which Mr Ruhaza had advanced in prolix form and which had been eliminated on the sift. It was against that elimination that he was appealing and it was in order to see whether was anything in the bias allegations that HHJ Birtles made his entirely appropriate order. That has run to an end for the reasons I have given, because it has emerged not that the affidavit was not served in time but that it did not contain a tenable case of bias.

1. What remained, however, has emerged as potentially rather substantial. I put it in very short form for the present, but what has emerged is that Mr Ruhaza took his stand on his originating applications having in truth been lodged in time in relation to both acts of discrimination of which he complained. Whether an application is in time is not merely a matter of arithmetic. In this case mathematically, for example, the discriminatory advertisement of which Mr Ruhaza complained had first come to his notice three months and one week before he issued his form ET.1. But that does not conclude the question of time, because there is always the question whether the act complained of was a one-off act or a continuing act. Mr Ruhaza contends that he had taken this point at one of the case management hearings, but it is evident from the tribunal's own decision in any event that he took the point at the hearing. It had to be dealt with; but it is not at all easy to see on our examination of the tribunal's determination that they did so. What is more, the way that the issues themselves are formulated at paragraph 11 of the ET's determination is, on the face of it, remarkable and requires further consideration. It reads as follows:

"11. After explaining the procedure and the fact it if either party wished to rely on any document, it needed to be drawn to the Tribunal's attention, at the start of the Hearing the issues were set out as being: --

(i) a complaint of direct racial discrimination --

in an advertisement the claimant received on 9 November 2007, the respondent stated that their client would 'prefer to have a British national' as a Bi-Lingual Operations Coordinator. It was the claimant's case that the respondent had applied a provision, criterion, or practice -- that of being a British national, which was a discriminatory provision, or practice which could not be justified, and

(ii) a complaint of indirect racial discrimination --

that on 15 February 2007 when he had applied for two positions (which was denied by the respondent) the French Bi-Lingual Freight Coordinator and French Bilingual Sales Administrator, the respondent enquired as to whether 'he would be moving from his home Coventry to Manchester'."

1. I think I speak for the whole court when I say that we find this a most baffling formulation. Miss Levene tells us it was not hers; Mr Ruhaza has not said that it was his. The formulation of the first complaint -- that of direct racial discrimination -- first of all sets out something which, if true, looks almost unanswerable. It had nothing to do with whether this was a provision, criterion or practice with a disparate impact, and which therefore was capable or incapable of being justified. Those are the tests that apply to indirect discrimination claims. The issue cannot involve what the tribunal there set out. Secondly, as to the complaint of indirect racial discrimination, where the disparate impact of a provision criterion or practice does come into issue, so may justification, but neither of those issues is spelt out by the tribunal in relation to the second of the complaints. It is possible that there was some error of cutting and pasting, but it is not obvious that it was so.

1. In this situation it is evident that much more was on the EAT's agenda on this appeal than was dealt with by Cox J in relation to the bias issue upon which she understandably initially focussed. For my part, for that reason I would allow this appeal to the extent of remitting it to the EAT to continue with the hearing of the appeal before it, but shorn of the bias issue which, upon the findings that I have made, if my Lady and my Lord agree with them, is not a live issue and is not capable of succeeding. The remainder appears to me to require investigation and adjudication, which it has not yet had and should now have.

1. Because of the complications that have arisen and of the complications that I am afraid are going to go on arising with Mr Ruhaza, who is a serial litigant conducting his case in person, I would direct that the matter go back, in the first instance at least, to the President, so that he may either deal with it or give directions to enable it to be dealt with in the best possible way.

Lady Justice Smith:

1. I agree. I too am of the view that the allegations of bias cannot succeed and must in effect be struck out, but I also agree that the balance of the issues raised in the notice of appeal must be considered by a judge of the EAT beginning under the sift procedure. It appears to me that Cox J struck the whole appeal out as a sanction for breach of an order and therefore did not give any consideration, as she could have done, on that occasion to the potential merits of the other grounds. It may be that the judge who considers the other grounds will conclude that there is no merit in them. Indeed, as my Lord has said, they are not clearly expressed. However, for the reasons given by my Lord, Sedley LJ, there are reasons for concern in the other grounds of appeal and accordingly I agree with the disposal that he has proposed.

Lord Justice Leveson:

1. I agree with both judgments and with the disposition suggested by Sedley LJ.

Order: Application allowed in part