Jones v DAS Legal Expenses Insurance Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JUDGE |
| Judgment Date | 24 July 2003 |
| Neutral Citation | [2003] EWCA Civ 287,[2003] EWCA Civ 1071 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A1/2003/0005,Case No: A1/2003/3005 |
| Date | 24 July 2003 |
[2003] EWCA Civ 1071
Lord Justice Ward
Lord Justice Waller and
Lord Justice Hale
Case No: A1/2003/3005
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Jones appeared in person
Mr Pirani (instructed by Messrs Lyons Davidson) for the Respondent
This is the judgment of the court.
Mr Philip Jones, the appellant, was employed as a senior claims handler by the first respondent, DAS Legal Expenses Insurance Co. Ltd. He complained to the Employment Tribunal in Bristol that in conducting an appraisal of his work, and generally, his line manager, Nicola Gale, the second respondent, and her superior, Mary Barnes, the third respondent, discriminated against him on the grounds of his sex. He complained that the company was guilty of sex discrimination in their selection of those who were given overtime work in the company's legal advice service. His third complaint was of victimisation by the general manager, Charles Wright, as a result of the instigation of the proceedings before the tribunal.
The matter was listed for four days to start on 12 th December 2001. A full-time chairman, Mrs O.R. Harper presided with the usual two wing members. Mr Jones appeared in person. He had been admitted as a solicitor in November 1993 but had limited post qualification experience, virtually no advocacy experience and he has never held a practising certificate. The respondents were represented by counsel, Mr Pirani, who appears before us.
The case started at about 10.40 a.m. After a few preliminary observations the chairman, Mrs Harper, made an announcement which gives rise to this appeal. Precisely what she said is a matter of dispute. The appellant's account of it to the best of his recollection is that Mrs Harper announced to the parties that her husband was a barrister in chambers that undertook work for DAS and she asked Mr Jones if, bearing that in mind, he was content that she should hear the matter. She told him she did not know the individual respondents. Mr Jones was taken aback as we shall later explain but whatever the pressure, he agreed to the matter continuing and after a short adjournment the hearing did indeed proceed.
Moving forward to the point when the evidence and submissions had concluded, the tribunal announced that Mr Jones was not successful and that his applications were to be dismissed. Before the written reasons were promulgated, Mr Jones wrote to the regional chairman complaining that Mrs Harper had failed to disclose that her husband did work for DAS and that she was biased. The response to that complaint gave Mrs Harper the first opportunity to explain herself. The regional chairman wrote:-
"I understand that at the outset of the hearing, Mrs Harper informed you that her husband was a barrister and that the chambers undertook work for DAS. Indeed, her recollection is that she said he has appeared for DAS, but that she had no connection with the company or any knowledge of it. She invited comment from you. She noted that you did not object to her continuing to chair the tribunal."
Once the extended reasons had been given in writing or sent to the parties on 28 th March 2002, Mr Jones sought a review of the decision. In rejecting that application Mrs Harper stated:-
"The interests of justice do not require a review as at the commencement of the hearing the Chairman advised the parties that her husband, a barrister, on occasions was instructed by the respondent. The Chairman at that time did not know of any individual cases on which her husband was instructed, nor of any financial advantage as to the outcome of any such cases. Having raised the matter with the parties, the Chairman asked whether the applicant (who is a qualified solicitor) had any objection to her sitting on the case. The applicant said he had no objection. The Chairman considered that the applicant had therefore waived any objection to the Chairman sitting on the case."
A third version of what happened was given by Ms Donald, a paralegal employee of the respondent's solicitors, who took the following note:-
"Chairman – Poss. conflict because Mr Harper occasionally instructed by Rs – do you object? I don't consider it a problem.
PJ – No objection."
To resume the narrative of the hearing, Mr Jones gave evidence and was cross-examined. In addition to evidence from the three individual respondents, other senior managers gave evidence and made statements. After the short adjournment on the second day, there was another unusual event: the regional chairman announced that for unexpected and unavoidable personal reasons of some sort Mrs Harper was unable to continue the hearing that afternoon or for the next following two days for which it was listed. The matter had to be adjourned to February and the parties were informed that they might even have to start all over again before another tribunal. In the event the hearing resumed before the same tribunal on 25 th February and ended on 27 th February with the tribunal announcing their decision adverse to Mr Jones. There followed the short exchange of correspondence to which I have referred. The extended reasons in writing were promulgated on 28 th March 2002. It is unnecessary to give any detail of the reasons for that decision. There has been no challenge to the directions of law given by Mrs Harper. The case turned upon its facts and the decision was unanimous. We have, however, read it carefully and it reads like any other decision of an Employment Tribunal as they are being handed down day in and day out. That, however, is not the question which arises in this appeal.
Disappointed by the result, Mr Jones began to investigate what kind of connection there was between Mr Harper and his employers, DAS.
DAS is probably the market leader in providing legal expenses insurance. One of its principal activities is the handling of employment claims and there is a large in-house litigation unit dedicated to that work. Barristers and solicitors have apparently tendered for work in this connection. Mr Harper's chambers in Bristol is one of only five sets which have been appointed to the panel throughout England and Wales, in their case covering Bristol and the West Country, South Wales and extending up into the Midlands. Individual barristers also appear to be accredited and one of them is Mr Harper. Their appointment dated from May 2000, about eighteen months before the matter came before the Employment Tribunal. The in-house litigation department is able to instruct counsel direct and Mr Jones has conducted a "random search" which has established that Mr Harper was directly instructed on about eight occasions between March 2001 and November 2001, shortly before the hearing, and was paid fees totalling a little over £3,000. Since the hearing, Mr Jones' information is that he has continued to be instructed, certainly up to June 2002, receiving nearly £2,500 from DAS. Mr Jones points out that he has no access to information showing how much was paid to Mr Harper by solicitors on the panel and invites us to infer that further income has been enjoyed from this source. Importantly, Mr Jones points out that the appointments to the panel are in the gift of the managers some of whom were respondents, and others of whom gave evidence on behalf of the company in the hearing in the Employment Tribunal. None of this information has been challenged by DAS.
Having had his application for a review rejected partly on the merits but partly also because the chairman, Mrs Harper, took the view that Mr Jones had waived any objection to her sitting, Mr Jones appealed to the Employment Appeal Tribunal. The decision of the Appeal Tribunal was sent to the parties on 19 th December 2002. His appeal on the ground that the decision was perverse was rightly rejected. With regard to the allegation of bias His Hon Judge Peter Clark dealt first with the dispute as to what had happened at the opening of the hearing and concluded:-
"… We think it overwhelmingly probable that Ms Donald's [the paralegal's] note is accurate; it having been contemporaneously recorded at the time the chairman raised the point and we are satisfied that she disclosed the fact that her husband was himself occasionally instructed by the respondent."
The tribunal then asked whether that was a ground for setting aside the tribunal's decision and held:-
"In our judgment it is not. Even if one were to accept, that applying the Court of Appeal's guidance in Locabail (U.K.) Ltd. v Bayfield Properties Ltd. [2000] IRLR 98 paragraph 10, this was a case where the chairman's interest derived from her spouse such that there was a link close enough and direct enough to render the interest of her husband for all practical purposes indistinguishable from her own, we are satisfied that the potential conflict was adequately raised by the Chairman at the outset of the proceedings and that Mr Jones was given all the information that he required to decide whether or not to waive his right to object to her continuing sitting in this case. His waiver was clear and unequivocal. The hearing took place over two days in December and was then adjourned until February 2002; no objection was taken by Mr Jones until after the result was communicated to him. In these circumstances we reject the first ground of appeal."
He appeals to us with permission of Judge L.J. In this court Mr Jones, who, if we may be permitted to say so, argued his case as well as any experienced...
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