Bangs v Connex South Eastern Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Dyson,The President |
| Judgment Date | 27 January 2005 |
| Neutral Citation | [2005] EWCA Civ 14 |
| Docket Number | Case No: A2/2004/0586 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 January 2005 |
[2005] EWCA Civ 14
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT
APPEAL TRIBUNAL
BURTON J (PRESIDENT)
Royal Courts of Justice
Strand, London, WC2A 2LL
The President
Lord Justice Mummery and
Lord Justice Dyson
Case No: A2/2004/0586
Miss Adrienne Morgan (instructed by Simpson Millar) for the Appellant
Mr Daniel Matovu (instructed by Kennedy's) for the Respondent
General Introduction
This appeal poses a challenging question on the Human Rights Act 1998 (the 1998 Act) and the right to a fair trial under article 6(1) of the European Convention on Human Rights (the Convention): what is their impact on the right of appeal in a case where an employment tribunal failed to promulgate the decision under appeal within a reasonable time of the conclusion of the trial hearing?
Under article 6 a litigant has the right to the determination of a tribunal "within a reasonable time": Porter v. Magill [2002] 2 AC 357 per Lord Hope at paragraph 108. This is in addition to the right to a fair trial within a reasonable time. Article 6 does not lay down what is a reasonable time. It does not even attempt to identify any of the factors relevant to determining what is a reasonable time. The question obviously depends on all the circumstances of the particular case: the nature of the tribunal, its jurisdiction, constitution and procedures, the subject matter of the case, its factual and legal complexity and difficulty, the conduct of the tribunal and of the parties and any other special features of the situation in which delay has occurred.
The likely effects of delayed decision-making, which can be serious, are relevant in determining what is a reasonable time. A tribunal's delay prolongs legal uncertainty and postpones finality. It increases anxiety in an already stressful situation. It may cause injustice. A claimant in the right is wrongly kept out of his remedy and a defendant in the right has to wait longer than is reasonable for the allegations and claims against him to be rejected.
It is self evident that delay may also have a detrimental effect on the quality and soundness of the decision reached. This is more likely to occur where the decision turns less on the interpretation and application of the law than on the resolution of factual disputes, on which the tribunal has heard contradictory oral evidence from witnesses. Excessive delay may seriously diminish the unique advantage enjoyed by the tribunal in having seen and heard the witnesses give evidence and may impair its ability to make an informed and balanced assessment of the witnesses and their evidence.
Indeed, this is the very complaint in the race discrimination case under appeal. The hearing before the employment tribunal took place 2 1/2 years ago. Unfortunately, over a year then passed before the tribunal promulgated its decision in favour of the complainant Mr Yaya Bangs against his employer, Connex South Eastern Limited (Connex). Connex then successfully appealed to the employment appeal tribunal on the ground of unreasonable delay, which, it contended, had resulted in a decision against it flawed by errors and omissions attributable to the delay.
The novel legal aspect of this appeal is that statute restricts the right of appeal against the decision of an employment tribunal. This is not unusual. A restricted right of appeal is common to most specialist statutory tribunals and inquiries. By s 21(1) of the Employment Tribunals Act 1996 the right of appeal is limited to questions of law arising from any decision of, or arising in any proceedings before, an employment tribunal. A question of law is not confined to misconstruing or misapplying substantive law in the decision itself. It may also arise from a procedural error or irregularity in the conduct of the proceedings before the tribunal, which, depending on the nature and gravity of the error or irregularity, may lead to a successful appeal and even to an order for the case to be re-heard by another tribunal.
The tribunal's findings of fact, including findings on the credibility of witnesses, can only be challenged on appeal if it is established that no reasonable tribunal could have made the findings in question. A perverse decision is erroneous in law. It must be shown by the appellant that material findings of fact by the tribunal are perverse because, for instance, they are unsupported by any evidence, or they are contrary to uncontradicted evidence or they are plainly wrong for some other reason.
The restricted right of appeal from an employment tribunal is significantly different from the right of appeal in an ordinary civil case, where there is a right of appeal on both fact and law. In ordinary civil appeals the question is not whether the court substantively or procedurally erred in law, but whether the decision of the lower court was "wrong": CPR Part 52.11(3). A decision of the court below is wrong if it erred in law and/or it erred in fact. The court may set the decision aside and order a new trial. An appeal may also succeed where, even though the decision of the lower court was not "wrong", it was unjust because of a serious procedural or other irregularity.
In cases where there is a right of appeal on both fact and law it has been held that the appellate approach to cases of excessive delay is to ask whether, as a result of the delay, the decision under appeal is "unsafe" and whether it would be "unfair or unjust to let it stand": see the judgment of the Privy Council delivered by Lord Scott in Cobham v. Frett [2001] 1WLR 1775 at 1783D. Although it was not a case to which article 6 of the Convention applied, the approach is, in my judgment, compatible with the Convention article and the jurisprudence on it.
" In their Lordships' opinion, a legitimate basis on which the Court of Appeal could assert the right to disagree with the judge's evaluation of the evidence and of the witnesses was absent. It can be easily accepted that excessive delay in delivery of a judgment may require a very careful perusal of the judge's findings of fact and of his reasons for his conclusions in order to ensure that the delay has not caused injustice to the losing party. It will be important to consider the quality of the judge's notes, not only of the evidence but also of the parties' submissions. In the present case the judge's notes were comprehensive and of high quality. As to demeanour, two things can be said. First, in their Lordships' collective experience, a judge re-reading his notes of evidence after the elapse of a considerable period of time can expect, if the notes are of the requisite quality, his impressions of the witnesses to be revived by the rereading. Second, every experienced judge, and and Georges J was certainly that, is likely to make notes as the trial progresses recording his impression being made on him by the witnesses. Notes of this character would not, without the judge's permission or special request being made to him, form part of the record of an appeal. They might be couched in language quite unsuitable for public record. In the present case delay, with a consequent dimming of the judge's recollection of the evidence and of the witnesses demeanour, was not a ground of appeal. In these circumstances it is, in their Lordships' opinion, impermissible to conclude from the fact of a 12-month delay that the judge had a difficult task, let alone an "impossible" one as Singh JA suggested in remembering the demeanour of witnesses.
In their Lordships' opinion, if excessive delay, and they agree that 12 months would normally justify that description, is to be relied on in attacking a judgment, a fair case must be shown for believing that the judgment contains errors that are probably, or even possibly, attributable to the delay. The appellate court must be satisfied that the judgment is not safe and that to allow it to stand would be unfair to the complainant."
The Issue
The main issue on this appeal is whether, since the 1998 Act came into force, the same or a similar approach is available in appeals from an employment tribunal. Is the fact of unreasonable delay, without more, available as an independent ground of appeal? Is it sufficient, as the employment appeal tribunal held in this case, for the appellant to establish that the decision is "unsafe" because the unreasonable delay has resulted in factual errors in or omissions from the decision, even though, in the absence of perversity, such errors or omissions would not themselves normally raise a question of law? Or is unreasonable delay in giving the decision only another factor, which eases the appellant's Sisyphean task in establishing that the decision was perverse and therefore erroneous in law, as no reasonable tribunal could have reached it?
A striking feature of the decision of the employment appeal tribunal, from whose decision Mr Bangs appeals, is that, in reliance on article 6 of the Convention, it allowed the appeal by Connex against the finding of direct race discrimination without expressly identifying an error of law on the part of the employment tribunal. The appeal was allowed on the ground that the delayed decision of the employment tribunal was "unsafe," as the delay had led to errors and omissions in the findings of fact and reasoning of the employment tribunal.
Mr Bangs accordingly complains that, on grounds which are not permitted by the restrictive provisions of s21(1) of the 1996 Act, he has been deprived of the benefit of the decision which the employment...
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