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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> May v British Railways Board [1995] UKEAT 956_94_2310 (23 October 1995) URL: http://www.bailii.org/uk/cases/UKEAT/1995/956_94_2310.html Cite as: [1995] UKEAT 956_94_2310

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BAILII case number: [1995] UKEAT 956_94_2310

Appeal No. EAT/956/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 October 1995

THE HONOURABLE MR JUSTICE MAURICE KAY

MR D G DAVIES

MRS J M MATTHIAS

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MR ROBERT MAY          APPELLANT

BRITISH RAILWAYS BOARD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON

For the Respondents MR A PRYNNE

(Of HM Counsel)

Messrs Kennedys

Solicitors

Longbow House

14-20 Chiswell Street

London

EC1Y 4TY


 


MR JUSTICE MAURICE KAY: The appeal of Mr Robert May against the decision of the Industrial Tribunal at London (South) was listed for hearing today. The history of the matter is as follows: the Industrial Tribunal heard Mr May's case on 22, 23 and 24 June 1994. The decision of the Tribunal was sent to the parties on 26 August 1994. That decision was to dismiss his application based on allegations of race discrimination. Mr May had represented himself at that hearing and, after receiving the decision, he gave notice of appeal, again acting in person. The grounds of appeal were three in number, largely directed to issues of evidence in the hearing, but ending with the words "further grounds of appeal to follow".

His appeal was put in the list in this Tribunal on 15 December 1994 for a Preliminary hearing to decide whether there was sufficient in it to proceed to a full hearing. On that date, this Tribunal decided that there was sufficient in it to proceed to a full hearing. Soon after that, no doubt mindful of the fact that appeals to this Tribunal only lie on points of law, Mr May consulted solicitors, initially Haynes & Co in South London. A Legal Aid application on his behalf must have been submitted early in 1995 because in February 1995 Haynes & Co received a Legal Aid Certificate from the Legal Aid Board. It was not an unlimited certificate; it was in the well-known form, allowing certain steps to be taken pursuant to the certificate up to and including Counsel's Opinion as to the merits. It is a little difficult to define on the present information what happened thereafter. Suffice it to say that the affairs of Haynes & Co resulted in a Law Society intervention, we believe, in or about May 1995, when another South London firm, Ceres & Co, appear to have assumed responsibility for Haynes & Co.

Thereafter, from Mr May's point of view, little or nothing appears to have happened.

Some time ago, he would have received a Notice from this Tribunal, addressed to him in person, because this Tribunal was unaware of any representation on his behalf. That communication would have notified him of today's hearing. Mr May must also have been aware, and accepts that he was, that by the order made on 15 December last year, it was necessary for a Skeleton Argument on his behalf to be lodged at this Tribunal at least 21 days before today. At some stage, and the date can not be precisely fixed, Mr May tells us that he approached Ceres & Co to remind them of the date of the hearing and the need to submit a Skeleton Argument and at that stage (taking a letter from Ceres & Co to the Tribunal dated 16 October at face value) Ceres & Co seemed to have mislaid the file. They found the file in time to write the letter of 16 October to which we have just referred, which requested an adjournment of today's hearing date. That request was not communicated to the Respondents. The Registrar ruled against that application and said that the matter, if it was to be pursued as an application for an adjournment, should be raised before this Tribunal today.

When the case was called on today, Mr May described that history to us and applied for an adjournment. We have considered this matter and are concerned about it. From Mr May's point of view he has a ruling from this Tribunal to the effect that there is a sufficiently arguable case for his matter to proceed to a full hearing and he has a Legal Aid Certificate, albeit in a limited form. From the Respondents' point of view, they submitted their Skeleton Argument as long ago as February 1995. They knew nothing of Mr May's legal representation or Legal Aid, nor of any application for an adjournment until they came here ready to proceed today. Mr Prynne who appears on their behalf, as he did in the Industrial Tribunal, criticises both Mr May and his solicitors for the state of unpreparedness. We have considered those criticisms. Although it may seem to some extent remiss of Mr May simply to have allowed things to stagnate for many months, we remind ourselves that he was concerned simply with an appeal on a point of law and there was really no great input that was required from him, for as long as solicitors were acting for him in connection with the appeal.


 


We have come to the conclusion that having surmounted the hurdle of the Preliminary Hearing, having placed the matter in the hands of solicitors and having obtained limited Legal Aid, there is a risk of injustice if Mr May is denied legal representation upon the hearing of this appeal. We prefer to say nothing about his prospects of success upon this appeal but we do consider that justice requires us to accede to his application for an adjournment. We wholeheartedly agree with Mr Prynne, and we imagine that Mr May would agree as well, that the sooner the appeal comes on the better. We have been concerned to investigate a time scale wherein that could happen. We are told that there is an available fixture on 6 December and it is one which suits the convenience of Mr Prynne. Accordingly, what we propose to do is to adjourn this appeal until the 6 December. We shall direct that any amended grounds of appeal which may be sought by Mr May and the Skeleton Argument on his behalf should be submitted to the Tribunal by 24 November. That leaves him and his solicitors with about a month in which to obtain an Opinion from Counsel and, if favourable, to liaise with the Legal Aid Board about the extension of his Legal Aid.

It does not lie within our hands to seek to influence that decision, save that we expect that the time scale we have prescribed will enable the decision to be taken in such a way as to allow compliance with our directions. Mr Prynne has applied for the costs of today. At this stage and in the absence of representation from Mr May's solicitors, we do not feel that it would be appropriate for us to make any order even of a provisional kind. However, we record that what Mr Prynne has in mind is a wasted costs order against Mr May's solicitors. So far as that application is concerned, it, together with any other application for the costs of today, will be adjourned to 6 December when anyone likely to be affected by such application, will have the opportunity to make full representation.