Ansar v Lloyds TSB Bank Plc and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER,LORD JUSTICE LAWS,Lord Justice Waller,LORD JUSTICE LEVESON |
| Judgment Date | 09 October 2006 |
| Neutral Citation | [2006] EWCA Civ 1462 |
| Docket Number | A2/2006/1733 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 October 2006 |
[2006] EWCA Civ 1462
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT TRIBUNAL APPEAL
(MR JUSTICE BURTON)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Waller
Lord Justice Laws
Lord Justice Leveson
A2/2006/1733
THE APPELLANT APPEARED IN PERSON.
MR J GIDNEY (instructed by Messrs Pinsent Masons) appeared on behalf of the Respondent.
Judgement
1. Mr Ansar appeals to this court with permission of Maurice Kay LJ a decision that as a Chairman of an Employment Tribunal one should not recuse himself from presiding over a Directions Hearing. In short, what Mr Ansar submits is that since he had made allegations of bias and misconduct against that Chairman in connection with previous proceedings, the Chairman was bound not to sit on the Directions Hearing in further proceedings brought by him.
The story can be shortly told. Mr Ansar brought proceedings against the respondents. They were heard over a period of many days. He challenged the result of those proceedings and included in his challenge was an allegation against the Chairman of the Employment Tribunal, a Mr Kolanko, of improper conduct and of bias. Mr Ansar had in fact commenced a second set of proceedings, which were stayed pending the conclusion of the first case. Once the first case had been completed the employers made an application that certain parts of the second proceedings should be struck out. That application was due to come on before Mr Kolanko sitting alone.
Mr Ansar then made an application in that second case to the Regional Chairman objecting to the further involvement of Mr Kolanko supporting that application with a letter. The application was dated 5 July and it was in two parts. It is only part 1, which is of relevance, and it is in the following terms:
"The Claimant objects to the continued involvement of Chairman Kolanko in these proceedings.
"Appeal on case 3101168/2004 has been remitted to the Employment Appeals Tribunal and pending further consideration. The nature of the appeal raises serious questions about both the partiality of Chairman Kolanko and the appropriateness of his sitting in the substantive hearing.
"A further complaint to the Lord Chancellor's Department/ Department of Constitutional Affairs has been submitted in conjunction with the appeal to the EAT. The Claimant has a genuinely held belief that Chairman Kolanko exhibited apparent bias not only throughout the hearing of the aforementioned case but also in the pre-hearing review leading up to the full hearing. Notwithstanding the existence of serious concerns relating to Chairman Kolanko's conduct towards the Claimant, his witnesses and the Respondent, there occurred mis-directions and errors in the application of the law which lead to utter perversity in the finding of fact established and subsequent decision.
"It is requested that Chairman Kolanko recuse himself from any further involvement in the Claimant's case without delay and that, subject to Part 2 of this application, if it is appropriate to hold a Pre-Hearing Review, a new Chairman be appointed accordingly."
4. That application was supported by a letter dated 5 July and that letter so far as material reads as follows:
"Chairman MP Kolanko presided over proceedings in relation to the first action 3 101 16812004 which included the full hearing which commenced on 27th September 2004 and a pre-hearing review held on 27th August 2004. As a procedural issue, it is contended that in accordance with the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, Chairman Kolanko should have been prohibited from sitting in the full hearing due to his involvement in the pre-hearing review.
"Serious concerns have been raised relating to Chairman Kolanko's apparent bias toward the Respondent during the pre-hearing review, following which you may recall I wrote to you on the 3rd September 2004 expressing some of my thoughts. Mr Kolanko made a number of decisions as part of the pre-hearing review process which included taking legal advice from the Respondent's counsel during the hearing, changing the name of the Respondent to a company which did not exist and declining witness orders for the Claimant whereas they were provided for the Respondent, stating
'Your request for witness orders is refused…there seems little purpose in ordering witnesses who do not wish to give evidence and cannot be the subject of cross examination by the person calling them…'
(Directions dated 14th September 2004)
"Throughout the full hearing, Chairman Kolanko overlooked numerous instances of serious misconduct on the part of the Respondent which included the breaching of several Tribunal Orders, ignoring disclosure requirements, making dishonest representations to the Tribunal about them and pressurising and victimisation of Claimant witnesses (to which they offered direct evidence) . These are only a few examples of the Respondent's misconduct that were raised in open Tribunal and it should be noted that the Respondent suffered no detriment whatsoever in spite of many requests and Applications made by the Claimant.
"In addition to procedural issues, the Chairman treated Claimant witnesses badly, potentially discriminating against the Claimant's only ethnic minority witnesses by first having their statements almost entirely struck out and secondly reprimanding them when they attended as observers—when Respondent witnesses attended as observers and acted in a disruptive manner no comment was made towards them.
"Witnesses to proceedings have commented about the unfair and harsh treatment of the Claimant throughout the 64 day hearing, which Chairman Kolanko allowed to be extended from the original 12 day period set by Chairman Kurrein. Not only was this contrary to overriding principles of justice which govern Employment Tribunals (especially as the Claimant was a litigant in person) but this occurred as Chairman Kolanko allowed irrelevant evidence to be entered into the proceedings which substantially distracted the Tribunal from the hearing issues relating to the originating particulars. Particular note should be given to the fact that the Chairman allowed matters to be progressed which he knew would seriously prejudice the second action, this in spite of applications asking him to set them aside in the interests of justice.
"Having procured an utterly perverse decision with errors in both the application of the law and findings of fact, Chairman Kolanko is now involved in the hearing of the second action 3104051/2004 intending to sit alone on 3rd August 2005 in a pre-hearing review. The Claimant is fearful that the Chairman's apparent bias and previous errors will unfairly prejudice this new action. Particular objections to this are outlined in the attached Application."
Mr Kolanko also in fact wrote to the Lord Chancellor's department on 4 July 2005, which is page 53 of the bundle. It does not add anything and it is unnecessary to quote from that letter.
The Regional Chairman responded by letter dated 21 July, which is at page 58 in the bundle:
"Further to my letter of 5 July, I have been able to look into the matters raised in your letter and also consider your application.
"Dealing first with your letter of 5 July, you have raised a number of matters concerning the hearing in case no. 3101 168/04. The hearing took place over 36 days in September and October 2004 and January and February 2005. The members met for a further 10 days to consider the decision, and the judgment with reasons, set out in a 65 page document, was sent to the parties on 27 April.
"I understand that you have entered an appeal against that judgment to the Employment Appeal Tribunal.
"In essence, the majority of your letter of 5 July concerns the conduct of the proceedings by the Tribunal in your first set of proceedings. As these are now the subject of an appeal to the Employment Appeal Tribunal, I consider that it would not be appropriate for me to comment and I will consider the matter once the Employment Appeal Tribunal gives its judgment.
"The conclusion of your letter and your application relates to your second set of proceeding, namely case no. 3104051/04, in which you have again raised discrimination complaints against Lloyds Bank and others. In essence, you are disappointed that Mr Kolanko is involved in these new proceedings when you have raised issues of bias etc. against him in relation to the first set of proceedings.
"The situation is that the allocation of Chairmen to hear cases is a matter for the Regional Chairman and, in carrying out that function, I am not influenced by requests by any party for the case to be heard or not to be heard by any particular Chairman.
"In the second set of proceedings there is a Pre-Hearing Review to take place on 3 August to determine applications made, which include applications to strike out the proceedings on the basis that the fats or issues have already been determined in the first set of proceedings.
"It appears to me that it is advantageous fir the Chairman of the Tribunal that determined the first set of proceedings to deal with that Pre-Hearing Review.
"Accordingly, your request for Mr Kolanko not to conduct that Pre-Hearing Review is refused.
"Should the proceedings continue beyond that point, then I will give consideration to whether it would be appropriate for Mr Kolanko to continue to hear the case in view of the decisions reached by the Tribunal in the first set of proceedings.
"As the second set of proceedings were held in abeyance for...
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