RD (India) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley |
| Judgment Date | 16 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1279 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2009/2175 |
| Date | 16 November 2010 |
[2010] EWCA Civ 1279
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
His Honour Judge Collins CBE
Before: Lord Justice Sedley
and
Lord Justice Moses
Case No: B2/2009/2175
WO014375, CL209366 & CL352464
Mr John Hendy QC and Mr Ghazan Mahmood (instructed by Bevans) for the Appellant
Mr Robin Allen QC and Mr Daniel Dyal (instructed by EHRC, Corporate Law & Governance) for the Respondents
Hearing date: Tuesday, 26 October 2010
Lord Justice Sedley:
This is the judgment of the court.
Before the court are consolidated appeals against two decisions of HH Judge Collins CBE sitting in the Central London County Court. By the first decision the judge held that he was not required by law to sit with assessors in order to determine an application to strike out the claim. The judge himself gave permission to appeal this decision. By the second decision he determined that the claim was untriable and struck it out. Underhill J granted permission to appeal this decision and directed that the appeal be transferred from the High Court into this court.
The appeal has been presented and conducted on both sides with exemplary focus and clarity, and we record our debt to both leading and junior counsel for the assistance they have given us.
The claim
In this action Mr Deman claims damages against what was the Commission for Racial Equality and is now the Commission for Equality and Human Rights, together with eleven of its officers, five former commissioners and an outside solicitor, for racial discrimination and victimisation over an extended period. The acts or omissions of which he complains are in essence the Commission's repeated failure to support litigation on grounds of racial discrimination against a number of academic institutions which had not appointed him to posts for which he had applied.
Mr Deman is a persistent litigant. An exhaustive account of his activity up to 2006 can be found in the judgment of Underhill J, sitting in the Employment Appeal tribunal, in Attorney-General v Deman [2006] UKEAT 0113/06/RN, at the conclusion of which the EAT made a limited but indefinite restriction of proceedings order against him. The present litigation escapes this formal stricture, but (as will be seen) it displays once more the vices of prolixity and unsupported assertion which drove the EAT to bring some at least of his activity to a halt.
Should the judge have sat with lay assessors?
We take this question first as Mr Hendy has invited us to, notwithstanding Mr Allen's contention that we should first examine the strikeout application in order to see that no evaluation of fact was called for. It seems to us more logical to decide first whether, knowing no more than that a strikeout application was to be heard, the judge was required by law to sit with assessors.
There was also, at the material time, a pending application on the part of the defendants for summary judgment which had been stood out and, perhaps advisedly, was not for the time being before the court. Nothing that follows relates to this: it might have raised questions of fact – albeit assumed facts derived from the claimant's pleading – which did require lay assessors.
Section 67(4) of the now repealed Race Relations Act 1976 provided:
(4) In any proceedings under this Act in a designated county court or a sheriff court the judge or sheriff shall, unless with the consent of the parties he sits without assessors, be assisted by two assessors appointed from a list of persons prepared and maintained by the [Minister], being persons appearing to the [Minister] to have special knowledge and experience of problems connected with relations between persons of different racial groups.
What happened at the Central London County Court on 10 December 2008 was that two qualified assessors had been summoned to sit with the judge on the strikeout application, but the judge, having heard submissions on both sides, discharged them and proceeded to hear the strikeout application on his own.
It is common ground that consent to dispensing with assessors, as envisaged by s.67(4), may be given by silence. This had happened on several interlocutory applications in the present litigation. But where, as happened here, one party makes it clear that it does not consent, it is Mr Hendy's primary contention that the court is obliged by law to sit with assessors, and that if it fails to do so it is unlawfully constituted and adjudicates without jurisdiction. He points by way of contrast to the helpfully specific provisions of s.4(1) of the Employment Tribunals Act 1996 which spells out both the general obligation of employment judges to sit with two lay members and the situations in which they need not do so, a specificity notably absent from s.67(4).
The purpose of assessors in race relations cases was described by Waller LJ in Ahmed v University of Oxford [2002] EWCA Civ 1907, [2003] 1 ICR 733, §32:
The background to Parliament passing section 67(4) and the language of section 67(4) demonstrate that the court was not intended to have a wide discretion as to whether to use the assistance of assessors. Furthermore, the persons to be appointed as assessors are not scientists or seamen with special expertise in the true sense of that term, but ordinary lay people who have a particular experience in life, an experience which, if it is to be of any real assistance to a judge, involves being able to assess the likelihood of whether some conduct or another is racially motivated. Their expertise (if that is what it should be called) embraces assessing the implications of factual situations, and assisting in reaching a conclusion as to whether racism has played a part. That in our view points to it being the intention of Parliament that in race relations cases judges were to be assisted by assessors in the broadest sense of helping them evaluate the evidence in the area of race relations. The fact that an assessor may be involved in the fact finding role, whether it be of primary fact or by way of drawing inferences from the primary facts, does not mean that the assessor is actually deciding the facts. The ultimate decision has to be for the judge, but section 67(4) requires the judge to use the assistance of assessors unless (as the section provides) the parties otherwise agree.
Judge Collins, taking his law from this passage, concluded that the two assessors (who agreed with him) could have no such function on the application which was before him. Mr Hendy's contention is that this was an impermissible and irrelevant inquiry on the judge's part: the Act bound him, whatever he thought of its usefulness.
Judge Collins took the view that the s.67(4) requirement...
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