Appeal No. EAT/0201/01 MA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 November 2002

Before
HIS HONOUR JUDGE PETER CLARK
LORD DAVIES OF COITY CBE
MRS D M PALMER

DR A M S ZALZALA	APPELLANT

THE UNIVERSITY OF SHEFFIELD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT	
For the Respondent	MS M TETHER
(of Counsel)
Instructed by:
Beachcroft Wansboroughs Solicitors
7 Park Square East
Leeds LS1 2LW	

HIS HONOUR JUDGE PETER CLARK

1	Dr Zalzala is a university lecturer by profession.  On 9 November 1998 he presented an Originating Application to Sheffield Employment Tribunal, naming as Respondent Sheffield University, by whom he was then employed in the engineering faculty.  He there described himself as being of Arab origin.  His complaint was one of unlawful racial discrimination. (“The First Complaint”).

2	The first complaint was listed for a 10-day merits hearing before the Sheffield Tribunal commencing on 1 June 1999.  An application by Dr Zalzala for a postponement of that hearing was rejected by a Chairman by letter dated 25 May 1999.  On 1 June the Respondent’s witnesses attended the Employment Tribunal together with their solicitor and Counsel.  Dr Zalzala did not attend, instead sending a letter renewing his application for an adjournment.  The Tribunal, chaired by Mr Williams (“The Williams Tribunal”), refused that application; dismissed the first complaint and adjourned the Respondent’s application for costs.  The first complaint was dismissed under the provisions of what was then Rule 9 (3) of the Employment Tribunal Rules of Procedure 1993.  Subsequently, at a hearing on 17 June 1999 the Williams Tribunal revoked their earlier order dismissing the first complaint but ordered the Applicant to pay costs totalling £2,041.56.  An appeal against that costs order was later dismissed.

3	The full hearing of the first complaint was, by Notice dated 12 July 1999, relisted for hearing on 10-21 January 2000.

4	On 7 December 1999 the Applicant presented a second complaint to the Sheffield Employment Tribunal.  He complained of racial discrimination and victimisation, naming as Respondents (1) Sheffield University, (2) South Yorkshire Police- whom he had asked to investigate potential criminal behaviour by the University – and (3) the three members of the Williams Tribunal.

5	On 10 January 2000 the Regional Chairman, Mr Sneath, ordered that the two complaints be combined.  In due course those combined proceedings were transferred to the Manchester region.  Having combined the complaints, the hearing fixed to commence on 10 January was adjourned.

6	A hearing of the combined complaints was fixed for 4-22 September 2000.  Meanwhile the claims against South Yorkshire Police and the Williams Tribunal members was dismissed on 7 February 2000.

7	On 3 August 2000 the Applicant applied for a postponement of the hearing fixed for 4-22 September.  That application was dismissed by the Manchester Regional Chairman.  An appeal against that refusal was dismissed by the vacation judge, Hallet J.

8	On 4 September a Tribunal was convened in Manchester under the chairmanship of Mr Russell.  The Applicant attended and renewed his application for a postponement.  That application was opposed by Counsel for Sheffield University (hereinafter referred to as the Respondent), Ms Tether.  It was refused.  The Applicant was asked to proceed, if necessary, the following day.  He refused.

9	Notice of Application having been given to the Applicant by the Respondent’s solicitors on 25 August, Ms Tether then applied for an order striking out both complaints under Rule 13 (2) (e) and/or (f) of the 1993 Rules of Procedure, that is for want of prosecution (ground (f)) and/or on the grounds that the manner in which the proceedings had been conducted by the Applicant had been scandalous, frivolous or vexatious.  The Russell Tribunal, having rejected an application by the Applicant for a postponement of the strike out application, heard the parties and struck out the complaints on the basis:

(i)	of want of prosecution by the Applicant; and
(ii)	that he had conducted the proceedings in a manner both scandalous and frivolous.

10	Their decision, with Extended Reasons, striking out the complaints and adjourning the Respondent’s application for costs, was promulgated on 26 September 2000 (“the relevant decision”).

11	The Applicant appealed at various stages of the proceedings.

12	On 20 July 2001 five appeals came before a division of the Employment Appeal Tribunal presided over by Lindsay P for ex parte Preliminary Hearing.  On that occasion the Applicant appeared in person.  In a reserved judgment running to 23½ typed pages, delivered on 3 August 2001, the President considered the bulk of those appeals and, for the reasons given, dismissed them save for three matters, contained in appeals numbered 0201/01; 0202/01 and 0203/01, and more particularly identified at page 23 B of the transcript of his judgment.  Those three matters were adjourned generally to be restored for Preliminary Hearing before the same division.

13	The restored hearing took place on 25 March 2002.  The Applicant did not attend on that occasion.  However, on 21 March he faxed a Skeleton Argument to the Employment Appeal Tribunal for use at the forthcoming restored hearing.

14	The President’s division considered the remaining grounds of appeal on the papers.  By a judgment delivered on 25 March all grounds of appeal were dismissed, save that appeal 201/01 was permitted to proceed to a full hearing solely in relation to the relevant decision made by the Russell Tribunal.

15	Pausing there, by a Notice of Appeal dated 6 November 2000 in EAT 201/02 the Applicant appealed, in part, against the relevant decision.  His grounds of appeal identified the following questions of law:

•	“The Manchester Tribunal and Mr Russell erred in law including Rule 13 (7), Rule 4 (7), Rule 4 (1), Rule 4 (2), and others.
•	Mr Russell and the lay members Mr Goodwin and Miss David are biased against the Applicant.
•	Mr Russell failed to observe justice by strictly providing for the needs and desires of white female solicitors.  Mr Russell may be corrupt.”

16	He did not then set out any separate grounds of appeal.

17	We have read his Skeleton Argument dated 21 March 2002.  As to appeal 201/01 the Applicant complains of the telephone hearing conducted by the vacation judge, Hallet J, on 1 September 2000; contends that the Russell Tribunal gave invalid reasons for refusing his postponement application on 4 September 2000 and raises questions of financial irregularities and the Tribunal’s refusal to provide him access to South Yorkshire Police files.

18	None of these points found favour with the Employment Appeal Tribunal on 25 March 2002.  Instead, the Employment Appeal Tribunal permitted the appeal 201/01 to proceed to a full hearing on a basis not advanced by the Applicant.  The relevant passage in the President’s judgment given on 25 March appears at paragraphs 7-8.  We should set that passage out in full:

7	“There are some features there that are a little troubling.  Dr Zalzala’s case was brought to the Employment Tribunal right down to preparation for a substantive hearing.  In that circumstance can one say there has truly been a want of prosecution?  Is it not that want of prosecution is an expression that deals with a situation where something interlocutory has required of a party, for example, discovery or further and better particulars or something on those lines, where the party does not perform as some Order has required him to perform and that there is consequent delay in getting to a full hearing or such, that the full hearing is never reached?  Here the full hearing was reached.  Does the Respondent suffer prejudice by way of the Applicant not proving his case at the full hearing?  Should not the Applicant have either asked for judgment in the absence of the Applicant, as was the procedure under the old Rules of the Supreme Court Order 35 Rule 1 (2), or, alternatively, could not the Respondent have called its witnesses and proceeded to ask for judgment such as their unchallenged evidence would justify?  As for scandalous, would it truly cause public outrage if it was appreciated that the Respondent could get a judgment in the Applicant’s absence?  Indeed, many Respondents would think it a positive bonus to have an Applicant absent.  As for frivolous, there was no decision on the Tribunal’s part to strike out Dr Zalzala’s case solely on the footing that it was frivolous.  Whether it would have done so is, of course, unclear.

8	Here – possibly stretching a point in Dr Zalzala’s favour – we do see that there is something that may be said to be arguable.  Accordingly, as to the strike out, we do allow the appeal to go forward on the basis we have indicated.”

Directions were then given for this full hearing.

19	The full appeal now comes before us today.  The Applicant has taken employment at the American University of Sharjah, in the United Arab Emirates, from whence he wrote to the Employment Appeal Tribunal a letter dated 9 November 2002.  In that letter he complains that in his judgment following the restored Preliminary Hearing held on 25 March the President did not deal with the arguments contained in his Skeleton Argument of 21 March.  He acknowledged receipt of a Notice of Hearing fixing today’s full appeal hearing, which he indicated he was unable to attend.

20	At paragraph 3 of the letter he said this:

b.	“However, the judgment dated 15 July 2002 [following the hearing on 25 March] allows the case to go to a full hearing on the basis of an argument made solely by the EAT President himself, as stated in paragraph 7 of the judgment.  This argument was never made by the Appellant at any stage.  To the Appellant’s inexperienced mind, the EAT President’s argument appears shaky according to his own words.  He says that he is “possibly stretching a point in Dr Zalzala’s favour” but “we do allow the appeal to go forward on the basis we have indicated.”

c.	It is indeed unclear if the EAT President does know what he is talking about in this judgment…”

And so on.

21	Thus it appears that the Appellant does not adopt the points made by the President for consideration at this full hearing.  He does not advance, by way of Skeleton Argument or written submission, any argument in support of the grounds on which this appeal has been permitted to proceed.  Instead, he invites us to revisit old arguments raised in his Skeleton Argument of 21 March, all of which were dismissed on 25 March by the President’s division.  We accept Ms Tether’s submission that we cannot and should not reopen those issues which have been finally determined at Employment Appeal Tribunal level.

22	Ms Tether again appears on behalf of the Respondent before us today.  She has lodged a Skeleton Argument for the purpose of the appeal against the relevant decision.  By faxed letter dated 25 November to the EAT Dr Zalzala complains that he only received her Skeleton Argument that day instead of the 14 days in advance of this hearing ordered on 25 March.  Conversely, he contends, he lodged his written submissions by letter dated 9 November.

23	That complaint might have had more force had (a) the Applicant sent a copy of his letter of 9 November to the Respondent’s solicitors instead of them having to rely on the EAT to provide them with a copy, and (b) had he adopted and developed the grounds on which this appeal was permitted to proceed by way of Skeleton Argument.  He has not.  Thus we have no Skeleton Argument from the Applicant in support of the grounds on which this appeal has been permitted to proceed before us.

24	In the circumstances outlined, Ms Tether’s first submission is that we should simply dismiss this appeal, 201/01, on the basis that the Applicant does not advance the grounds on which it was permitted to proceed by the President’s division on 25 March.  We decline that invitation, although we cannot ignore the fact that the Appellant himself regards the points raised at paragraph 7 of the President’s judgment as “shaky”.

Want of Prosecution

25	We accept Ms Tether’s submission that the expression ‘want of prosecution’ embraces conduct by a party which gives rise to the inference that he does not intend to bring the proceedings to a conclusion.  It includes the case of a party whose deliberate default in compliance with a peremptory order of the Court or Tribunal or whose conduct is an abuse of process, coupled with a substantial risk that it is not possible to have a fair trial.  See Birkett v James [1978] AC 297.

26	Standing back for a moment and surveying the course of this litigation we have no doubt that the Applicant’s conduct is an abuse of process.  It is designed to cause maximum vexation, inconvenience and expense to the Respondent and its witnesses.  The final straw was his refusal to prosecute his case in September 2000.

27	We accept Ms Tether’s submission that want of prosecution does not arise simply at the interlocutory stages of proceedings.  It can also arise and, on the facts of this case did arise, when the full hearing was reached and the Applicant declined to prosecute his case.  In our view the Russell Employment Tribunal was perfectly entitled to strike out the complaints on this ground.

28	That strictly disposes of this appeal.  However we further find that the relevant decision can properly be upheld on the grounds that the Applicant’s conduct was both frivolous and scandalous, for the reasons given by the Russell Tribunal.  Any one of those three findings – want of prosecution, scandalous conduct or frivolous conduct – is itself sufficient to justify striking out this claim.

29	In these circumstances we shall dismiss this appeal.

30	Following our judgment in this case Ms Tether makes application for the Respondent’s costs in this appeal, under Rule 34 of the EAT Rules.  Those costs include the costs of preparation for today’s hearing and the costs of today which involve Counsel’s fees £1,250 and the attendance of her instructing solicitor £1,000.

31	Bearing in mind that the appeal was permitted to proceed to a full hearing by the division which sat on 25 March we cannot say that the Appellant’s initial stance in pursuing this appeal was unnecessary or otherwise fell within the terms of Rule 34.  However, we pay particular attention to his letter dated 9 November, to which I referred earlier in our judgment.  It seems clear to us that the Appellant, as at that date, did not adopt or advance any of the grounds on which the appeal had been permitted to proceed.

32	Bearing in mind that those are the only grounds on which it was permitted to proceed it follows that his course then could only be to withdraw the appeal.  Any complaint as to the previous division’s treatment of his arguments for the purposes of the Preliminary Hearing on 25 March would be a matter for further appeal to the Court of Appeal, if permission were to be allowed.

33	In these circumstances it seems to us that this hearing before us today was wholly unnecessary.  The Respondent was entitled to attend and be represented by a solicitor and Counsel.  Bearing in mind the history of this matter it would be surprising if they did otherwise.

34	In these circumstances, we think it is a proper case in which to award the Respondent the costs of today, that is, a total of £2,250 + VAT, representing the cost for Counsel and solicitors’ attendance today and we make that order for costs against the Appellant.