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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> BLP UK Ltd v Marsh [2002] EWCA Civ 1301 (23 August 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1301.html Cite as: [2002] EWCA Civ 1301

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(Mr Recorder Langstaff QC)

		Royal Courts of Justice Strand London WC2 23rd August 2002

23rd August 2002
1. LORD JUSTICE ROBERT WALKER: This is an application for permission to appeal from an order of the Employment Appeal Tribunal ("EAT") which on 19th April 2002 dismissed an appeal by the employer, BLP UK Limited ("the company"), so far as the appeal relied on apparent bias on the part of an Employment Tribunal ("ET") sitting at Sheffield.
2. The ET had, after a hearing on 13th December 2001, reached a decision, which was announced on that day and then set out in extended reasons sent to the parties on 24th January 2001, that the company had on 20th October 1999 unfairly dismissed Mr Anthony Douglas Marsh. Mr Marsh had been employed by the company as a materials controller. He had, shortly before his dismissal, moved from the south of England to Doncaster following the takeover of his previous employer, Bermans, which was based at Enfield.
3. Since I have decided to grant permission to appeal on three of the four grounds relied on by the company I propose to say little about the grounds of appeal, but I should outline the position briefly and indicate why I refuse permission on the fourth ground.
4. The vexed topic of judicial bias, almost always apparent rather than real, has been considered in some very important recent cases, including Locabail (UK) Limited v Bayfield Properties [2000] QB 451, Re Medicaments No 2 [2001] 1 WLR 700, both decisions of this court, and the decision of the House of Lords in Porter v Magill [2002] 2 WLR 37, especially at pages 80 to 85 in the speech of Lord Hope. The practical and procedural implications have been considered by the EAT, presided over by Lindsay J, in Facey v Midas Retail Security [2000] IRLR 812. These cases have been relied on by Dr Malcolm Cohen, a director of the company, who has represented it before the EAT and today. He has produced grounds of appeal and a skeleton argument of commendable clarity and brevity.
5. The company's complaint is that the chairman of the ET showed apparent bias to the company from the beginning of the hearing by her demeanour, body language, questions and remarks. Mr Recorder Langstaff QC, presiding over the EAT, put it like this in the judgment from which the company wishes to appeal:

"To summarise the grounds of appeal and [Dr Cohen's] submission, we hope not unfairly, what is said is that the approach struck by the chair was such as to be aggressive and hostile to [the company's] witnesses, to involve an amount of tut tutting by her, a shaking of the head or rolling of the eyes in response to questions. In short, she took a partisan approach to the hearing before her, which he submitted went so far as to amount to an indication that she had a closed mind."

6. The judgment of the EAT, paragraph 30, also noted with regret that in her written statement, dated 14th September 2001, supplied to the EAT at their request under the Facey procedure, the chairman had:

"... not been able to resist the temptation of becoming an advocate in her own case and in speculating upon matters which are for us to speculate upon, if it is for anyone. We have had to consider whether or not the terms and tone of that commentary are capable of shedding light upon that which happened before the Tribunal."

7. See also paragraphs 25 to 29 of the judgment of the EAT. Nevertheless, the EAT decided that the appeal failed on that ground. I need not deal with the other matters which were before the EAT.
8. In his proposed grounds of appeal Dr Cohen puts forward four grounds on behalf of the company. First, that the EAT, despite having referred to all the relevant authorities, applied the wrong test (and too rigorous a test) in looking for actual bias rather than assessing the effect of the chairman's conduct on an objective and well informed observer.
9. Second, that the EAT erred in enquiring into and considering as relevant the reasons why the chairman acted as she appeared to have done, especially as the chairman herself denied that her conduct had been or could have appeared to be out of the ordinary.
10. Third, that the EAT erred in reinforcing its conclusion by reference to matters of fact which were disputed on appeal.
11. Fourth, that the EAT should have acceded to the company's request that its personnel manager, Mrs Samantha Walker, should be cross-examined on her affidavit as to the chairman's conduct at the hearing.
12. To these grounds Dr Cohen adds in his skeleton argument a reference to paragraph 86 of the judgment of the court in Re Medicaments, where this court said that the material circumstances would include any explanation given by the judge whose conduct was under review.
13. In my view, all these grounds, except number 4, are arguable with some real prospect of success. I will not attempt to quantify the prospect, but it is more than fanciful. I grant permission on grounds 1, 2 and 3 and grant a stay of execution. I do not give permission for an appeal on ground 4, the failure to hear oral evidence from Mrs Walker. That was a case management decision well within the discretion of the EAT. Its reference to Ladd v Marshall [1954] 1 WLR 1489 may not have been entirely apposite, but the reasons given were generally sound. The decision does not appear to be inconsistent with paragraph 39(v) of the EAT judgment in Facey.
ORDER: Application allowed. No order as to costs.