Ahmed and Governing Body of the University of Oxford and Another [CA (Civil), 20/12/2002]
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller |
| Judgment Date | 20 December 2002 |
| Neutral Citation | [2002] EWCA Civ 1907 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2002/0944 |
| Date | 20 December 2002 |
[2002] EWCA Civ 1907
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
His Honour Judge Playford QC
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Waller and
Lord Justice Laws
Case No: B2/2002/0944
Robin Allen QC; Ms Karon Monaghan (instructed by Messrs Christian Fisher Khan) for the Appellant
John Bowers QC; Mr Niran de Silva (instructed by Messrs Berrymans Lace Mawer) for the Respondent
This is the judgment of the court.
In June 2001 Nadeem Ahmed commenced a claim in the Oxford County Court against Oxford University and Doctor Fritz Zimmermann alleging discrimination and victimisation on racial grounds. The matter came on for trial on 28 th March 2002. The trial lasted for some 7 days before His Honour Judge Playford QC and two assessors appointed by virtue of section 67(4) of the Race Relations Act 1976 (the 1976 Act). On 22 nd April 2002 in an extensive and detailed judgment Judge Playford dismissed Mr Ahmed's claim. Mr Ahmed appeals against that judgment seeking a reversal of the judge's finding or a remittance of his claim for a rehearing before a differently constituted tribunal.
The story involves three students of Dr Zimmermann, Mrs Clark who is white and Mr Ahmed and Mr Pirani, who are not. The judge found that Dr Zimmermann discriminated against Mr Ahmed in favour of Mrs Clark. The three students took an exam in Arabic. Dr Zimmermann failed Mr Ahmed but passed Mrs Clark. The judge found that their performance in the exam did not justify the disparity of result. He held, however, that the motive for this discrimination was not racial, but the fact that Mrs Clark was a keen and diligent student, whom Dr Zimmermann was anxious to help, whereas Mr Ahmed had neither of those qualities and Dr Zimmermann felt that he should be discouraged from proceeding with his studies.
The principal reason why Mummery LJ gave permission to appeal was that this appeal raises the question of the role of the assessors appointed by virtue of section 67(4), and the judge's approach to that role. It is the first time that this court has had to consider the role of assessors in this field, and indeed it would seem that this is the first occasion on which any detailed consideration has been given to the role of such assessors.
The grounds of appeal
It is convenient to set out the grounds of appeal at the outset:
"The judge erred in law in:
1. Failing to inform the parties of the advice provided to him by the assessors (appointed pursuant to Section 67(4) of the Race Relations Act 1976);
2. Failing to provide the parties with an opportunity to make representations on the assessors' advice;
3. Failing to give adequate reasons for his decision and or otherwise erring in failing to state the advice provided to him by the assessors in his judgment;
4. Failing to act compatibly with Article 6 of Schedule 1 of the Human Rights Act 1998 by,
(i) Failing to provide the parties with an opportunity to make representations on the assessors' advice;
(ii) Failing to state the advice provided to him by the assessors in his judgment.
5. Failing to have regard to evidence on the defendant's policies and practices on eliminating racial discrimination, equality of opportunity and related matters (judgment paragraph 2)
6. Failing to make any findings on the Defendants' policies and practices on eliminating racial discrimination, equality of opportunity and related matters;
7. Failing to conclude that the differences in treatment he found was on racial grounds in circumstances where he rejected the Defendants' defence on the main complaint as "incredible granted fairness and equality" (paragraph 47);
8. Failing to conclude that the difference in treatment he found was on racial grounds and instead concluding that the reason for the treatment was a matter not relied upon by the Defendants in their fully pleaded Defence;
9. Failing to have regard to all the evidence relevant to the drawing of racial grounds including all the evidence of the Defendants' witness, Mr Pirani, as to treatment afforded him by the Second Defendant;
10. Reaching a decision which no reasonable Tribunal properly directing itself could have reached in concluding that the treatment afforded the Claimant (which he found to be less favourable) was not on racial grounds."
It is notable that these grounds of appeal make no criticism of the manner in which the judge used his assessors. They assume that he took advice from them of a nature that could be conveyed by him to the parties in the course of the hearing and recorded in his judgment. The complaint that is made in Grounds 1 to 4 is that the judge neither informed the parties during the hearing of the advice that he had received nor recorded this in his judgment. As Mr Robin Allen QC for Mr Ahmed developed these grounds of appeal before us, we became increasingly concerned that they were based upon a false premise as to the manner in which the judge should have used his assessors. We put our concerns to Mr Allen and, on reflection, he endorsed them. Thereafter, his submissions departed from his grounds of appeal in that he argued that the judge had failed to make proper use of his assessors. Mr Bowers QC for the respondents did not object to this change of battle front. He sought to uphold the manner in which the judge appeared to have used his assessors. This was summarised by the judge at the outset of his judgment as follows:
"For this reason, while I record my gratitude to the Assessors, who have sat with me and provided assistance pursuant to s.67(4), the scope for assistance has perforce been limited. Founding on The Aid (1881) P.84, Counsel (to whom I also record my gratitude) are agreed that the Assessors should not be involved in primary findings of fact nor in inferences to be drawn nor in the law to be applied. They may be concerned with race relations practice, for example training, equal opportunities policies or monitoring, the possibility of discrimination emerging in subconscious ways which may lead to inferences being drawn by me and in the use of language or conduct which may lead to subconscious racism. In this case, however, the outcome depends, as Neill L.J. anticipated in King v Great Britain-China Centre (1992) I.C.R. 516 at p. 528, "on what inferences it is proper to draw from the primary facts found by the tribunal". I make it clear, therefore, that I have in mind the views and assistance afforded by the Assessors but the findings of primary facts, the inferences drawn from them and the conclusions that follow are mine."
For reasons that we shall explain, we have concluded that this summary of the role of assessors in a race discrimination case is unsound. As we shall show in due course, the judge was led astray by submissions made by Mr Bowers as to the manner in which his assessors should be used. Those submissions were endorsed by Ms Monaghan, junior counsel representing Mr Ahmed. They represent, as we understand it, received wisdom in relation to the use of assessors in race discrimination cases. Before turning to the consequences of these matters on the result in this case, we propose to address the important issue of the manner in which assessors should be used in cases such as this.
The statutory framework
It is not in issue that if Dr Zimmermann discriminated against Mr Ahmed as defined by section 1 of the 1976 Act, or victimised Mr Ahmed on racial grounds as defined by section 2(1) of that Act, then Oxford University and Dr Zimmermann acted unlawfully by virtue of section 17 and 32 of the 1976 Act. It is unnecessary thus to set out sections 17 and 32 but convenient to set out the relevant parts of section 1, 2 and 3 of the 1976 Act.
Section 1(1) provides:—
"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if —
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons;….."
Section 2(1) provides:—
"A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has —
(a) brought proceedings against the discriminator or any other person under this Act; or
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or
(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or
(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."
Section 3(1) defines racial grounds as follows:—
"In this Act, unless the context otherwise requires —
"racial grounds" means any of the following grounds, namely colour, race nationality or ethnic or national origins;
"racial group" means a group of persons defined by reference to colour, race nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls."
By section 67(1) and (2) it...
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