No A1/2001/6037

Neutral Citation Number: [2001] EWCA Civ 547
IN THE SUPREME COURT OF JUDICATURE				  
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO REINSTATE

								Royal Courts of Justice
								Strand
								London WC2

								Friday, 30th March 2001

B e f o r e:

LORD JUSTICE SEDLEY

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DEMAN
Applicant
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LONDON BUSINESS SCHOOL and Another
Respondent

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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The Applicant appeared in person

The Respondent was not represented and did not attend

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J U D G M E N T
1.	LORD JUSTICE SEDLEY: This is an application by Mr Deman in person to reinstate before this court his application for permission to appeal. In Mr Deman's absence that application came before Lord Justice Mummery on 6th February. Lord Justice Mummery, in a considered and reasoned judgment, dismissed the application which was for permission to appeal against the refusal of the Employment Appeal Tribunal of permission to appeal against an employment tribunal's dismissal upon Mr Deman's non-appearance there of a complaint made by him of race discrimination against the London Business School and one of its professors.
2.	Some four weeks before the hearing before Lord Justice Mummery, Mr Deman had applied by letter for an adjournment on the ground that his counsel, Mr John Davies, might not be available on 6th February. This was a perfectly appropriate application to make if Mr Davies' inability to attend was going to result in Mr Deman not being represented. But the very fact that it was known so long beforehand demonstrated, in the judgment of Lord Justice Mummery, that there was adequate time to instruct other counsel. For that reason Lord Justice Mummery declined in advance to grant an adjournment. On reconsidering the matter on Mr Deman's non-appearance before him on 6th February, and no other reason having been given for absence, he again declined to adjourn the matter. He proceeded to give a reasoned judgment refusing permission to appeal on the merits.
3.	Today Mr Deman - who happily is well again after a long period of indisposition (according to his application, he has been on sick leave since September 1999) - comes before me seeking to reinstate the application which Lord Justice Mummery dismissed in order that it can be argued either by himself or by counsel. His written ground today is that he was unwell on 6th February and therefore unable to attend. He has produced a doctor's certificate of 9th January certifying that because of anxiety, depression and asthma he should not work for at least six weeks. He has also written to the court to say that on 6th February he had to go and see his general practitioner because of an attack of diarrhoea. In the nature of things, the latter information was not before Lord Justice Mummery, and since Mr Deman is concerned that his state of health was not considered in relation to an adjournment, it seems to me that in fairness to him I should consider the situation as Lord Justice Mummery would have wanted to do had he known all the facts I have now set out.
4.	It is already apparent from what I have said, however, that Lord Justice Mummery's decision in relation to a request for an adjournment did not have to do with Mr Deman's health. It was premised upon the fact that Mr Deman, for whatever reason, might not be able or need to attend and that in his absence he was to be represented by counsel.
5.	Today Mr Deman has explained a little more about the arrangements that were intended to be made for his representation. He had applied for legal aid in the latter part of the year 2000. This had been refused. He had appealed against the refusal. He puts before me today a letter from his solicitors, Kirk & Partners, dated 20th December, saying that the appeal was to be considered on 11th January. The outcome of that appeal is not a matter of record in any document placed before this court. Mr Deman suggests to me that the committee was not able to be assembled on that date and its decision had to be deferred for a couple of weeks. Even accepting that this is so, it is clear by now that the appeal against the refusal of legal aid had been unsuccessful and that Mr Deman has not at any stage of this proposed appeal been an assisted person. He did at the material time have solicitors, Kirk & Partners, acting for him even though they were not formally on the record. He tells me that it was they who had approached Mr Davies and, when told that Mr Davies might not be available for 6th February, it was they who Mr Deman relied upon to find other counsel. He believes they tried one or two other chambers but by 6th February, manifestly, they had not found anyone. He told me that they were not in funds from Mr Deman for this purpose. It is therefore perhaps unsurprising that any efforts they made may have been desultory.
6.	The consequence was that Mr Deman did not expect - and the court did not expect him - to be able to be present in person on 6th February. He expected - and the court expected - that he would instead be represented. It seems to me that his non-representation was not the sort of misfortune which sudden illness or sudden accident might represent. It was a simple failure to make arrangements. These were arrangements which made Mr Deman's state of health irrelevant. It seems to me, in those circumstances, that nothing which I now know - had it been known to Lord Justice Mummery - would have made any difference to the decision to which he came in relation to an adjournment.
7.	There is in all these cases an underlying issue of merits. The court will tend to be more sympathetic, for obvious reasons, to a litigant who has a manifestly good case than to a litigant who has a manifestly poor case.
8.	Lord Justice Mummery, in his judgment, set out the nature of Mr Deman's proposed appeal and the context in which it arose. Mr Deman has put before me today a helpful short submission on law. It is to the effect, which I accept, that while the refusal of adjournments is a matter of discretion, the discretion should not be exercised so as to frustrate justice where the difficulty has arisen through illness which has come upon the applicant. The present case was not and is not such a case. Mr Deman's difficulty was that the arrangements which he knew he had to make for representation had simply not been carried through and the fault was not with the representatives.
9.	As to the underlying case, the decision of the employment tribunal was itself an exercise of discretion conducted within rules, all of which were properly observed, as the Employment Appeal Tribunal pointed out. Lord Justice Mummery took the view, from which I have no reason to differ, that the proposed appeal stood very little if any chance of success because the decision sought to be impugned was one that lay well within the four corners of the discretion and powers of the employment tribunal. For that reason, too, it seems to me that this is not an application to which I should accede.
10.	In consequence, for the reasons I have given I will not allow this application for permission to appeal to be reinstated.
Order: Application refused