IN THE SUPREME COURT OF JUDICATURE No LTA 96/6194/B

APPLICATION OF APPELLANT FOR LEAVE TO APPEAL AND EXTENSION OF TIME

Royal Courts of Justice

Strand

London WC2

Friday, 7th March 1997

B e f o r e:

LORD JUSTICE WAITE

LORD JUSTICE PHILLIPS

Dr AKENA ADOKO

Applicant

- v -

THE LAW SOCIETY

Respondent

(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

The Applicant appeared in person

The Respondent did was not represented and did not attend

J U D G M E N T

(As Approved by the Court)

(Crown Copyright)

LORD JUSTICE WAITE: I will ask Lord Justice Phillips to give the first judgment.

LORD JUSTICE PHILLIPS: Dr Adoko appears in person to seek leave to appeal in relation to an order of the Employment Appeal Tribunal dated 8th May 1996. That order simply refused him leave to appeal against an order of the Employment Appeal Tribunal dated 4th December 1995. That order, in its turn, refused Dr Adoko's application that an appeal from an order of the Industrial Tribunal dated 28th March 1995 should go forward to a full hearing before the Employment Review Tribunal.

The order of 28th March 1995, in its turn, refused an application to review a decision of the Industrial Tribunal promulgated on 10th February 1995.

It seems to me to follow that the substantive question raised on this application is whether the decision of the 10th February 1995 was one that called for review.

It is appropriate at the outset to set out the background facts to this application. The applicant was called to the English Bar in 1960, but then for some 30 years he practised in Uganda and in

Tanzania. He practised with distinction. He rose to be the President of the Law Society in one of those jurisdictions. He then applied to transfer to the solicitors' profession in this country. The Law Society refused to let him do so unless he passed their Professional Conduct and Account examination on the ground that he did not have 8 years' experience of practice in England and Wales which was then a requirement laid down by the Law Society in their guidelines as a precondition to exempting barristers from taking that examination. Dr Adoko claimed that this refusal to exempt him from taking the examination amounted to indirect racial discrimination contrary to Section 12 (1) of the Race Relations Act 1976. His arguments were, in essence, first, that making exemption dependent on a number of years practice in England and Wales had a disparate racial impact and was incapable of justification since someone's experience of professional conduct and account rules obtained during practice in a Commonwealth country might well be far greater than that of a barrister who practised only in England and Wales for 8 years. Second, that in his individual case he had the necessary experience to be exempted, that he provided evidence of this and that the Law Society had arbitrarily and discriminatorily still refused to exempt him. Third, that the marks given to Dr Adoko of only between 40% and 44% when he sat the examination in question and the reliance placed by the Law Society on those marks amounted to a fettering by the Law Society of their discretion and to indirect discrimination. In addition to these allegations of indirect racial discrimination, the applicant also claimed that the Law Society was guilty of direct racial discrimination and, furthermore, that the indirect discrimination was intentional.

Those allegations were significant in this respect, that one or other had to be established if Dr Adoko was to be entitled to recover damages under the Act from the Law Society. Dr Adoko pursued these complaints by parallel proceedings. He sought judicial review and he also initiated proceedings before the Industrial Tribunal. Only the latter proceedings are directly relevant to the present application for leave to appeal.

Dr Adoko's claim in the Industrial Tribunal proceedings, the nature of which I have just outlined, was commenced by letter dated 11th December 1993. Not every step in those proceedings can be deduced from the documents before the court. But it is material to note

that on 30th September 1994 the Law Society served Grounds of Resistance, which admitted that the 8 year rule, if I may so call it, did constitute indirect discrimination. The Law Society averred that this indirect discrimination was unintentional so that no damages were recoverable by Dr Adoko.

The date for the hearing had been fixed for 31st October. On 24th October Dr Adoko served an amendment to the issues which relied, as an act of indirect discrimination, on the requirement that Dr Adoko should obtain a 50% pass mark in the examination that he was required to take in contradistinction to a pass of only 40% required from those barristers who had practised within the jurisdiction taking the same examination. That, as I understand it, is the detail of that complaint. The document containing the amendment is not in the bundle before the court.

On 30th October, the eve of the hearing, Dr Adoko withdrew his charge of direct discrimination. As I understand it, his understanding was that the proceedings would not then go ahead. That was something of a relief to him because not only was he unwell at the time but he was faced with personal matters that were causing him deep and understandable distress. Nonetheless, the hearing came on on the following day.

Lord Lester appeared for the Law Society, and the order that he invited the tribunal to make was an order striking out Dr Adoko's claim on the ground that the manner in which it had been conducted had been vexatious. Lord Lester relied on the following particular matters:

(1) he alleged that Dr Adoko had repeatedly disregarded directions from the tribunal that the names of individuals which had come to light in the course of documentary discovery should be treated as confidential;

(2) He complained that Dr Adoko had been guilty of late changes of tack, in particular, the amendment relating to the 50% pass mark and the dropping of the charge of direct discrimination on the eve of the hearing.

The reaction of the Tribunal was that Dr Adoko had a case to answer in relation to the strike-out application and that the matter should be adjourned for hearing on 2nd November.

On the adjourned hearing the Tribunal refused Dr Adoko leave to make his late amendment to his case, but equally rejected the Law Society's application to strike out the proceedings. The Tribunal ruled that it would be quite unjust to strike out the proceedings, having regard to the fact that the Law Society had now conceded that they had been guilty of indirect racial discrimination. The decision itself which was promulgated on 10th February 1995 recorded that it was the unanimous decision of the Tribunal that -

"1. The originating application of the Applicant should not be struck out, but that the Applicant had acted unreasonably in the conduct of the case. The Tribunal awarded costs against the Applicant in respect of any extra work which the Respondent was obliged to do in dealing with the proposed amendment to the Applicant's originating application with regard to indirect discrimination in respect of the pass mark."

In the course of the hearing itself Dr Adoko withdrew his allegation that the indirect discrimination which the Law Society had admitted was intentional. The effect was that no live issue remained as the Law Society sought no order as to costs and as Dr Adoko himself withdrew his application for costs. Accordingly, the decision recorded:

"2. The Respondent unlawfully discriminated against the Applicant contrary to section 12 (1) of the Race Relations Act 1976 read with Section 1 (1) (a) (sic) of that Act, but that such unlawful discrimination was unintentional and, therefore, no compensation is payable.

3. On the application of the Applicant, his claims relating to the unlawful discrimination and victimisation contrary to section 12 (1) read with section 1 (1) (a) and/or section 2 of the Race Relations Act 1976 are dismissed."

At the end of the hearing Lord Lester asked the judge to set out a full account of the hearing, for future reference, and that request was acceded to. The "Extended Reasons" which were promulgated for the decision included the following passage:

"4. The Tribunal considered the arguments put to it and decided not to strike out the Originating Application, because of the concession by the Respondent that they had unlawfully discriminated against the Applicant with regard to the requirement or condition that he should have eight years' practice in England and Wales before he could be exempt from taking any of the Society's examinations, in particular, the Professional Conduct and Accounts Paper. The Tribunal considered that it would not be just and equitable to strike out such a claim when there was an admission of unlawful discrimination. However, the Tribunal was satisfied that the Applicant had acted unreasonably in the conduct of the claim. It found that he had introduced a third issue of indirect discrimination involving the pass mark less than a week before the hearing. It found that he had refused to withdraw his claim of direct discrimination until the day before the hearing. He had failed to appear, but had sent Mr Aslamgul along with very strict instructions to apply only for judgment with regard to the claim of indirect discrimination and costs. It also found that the Applicant had breached the Tribunal's order on confidentiality. It is clear law that documents discovered in the course of proceedings may be used only for the purpose of those proceedings and the Tribunal did not accept the Applicant's ignorance with regard to the use of those documents. It was improper for him to use them in respect of a further transfer to the solicitor's profession or to appeal against a past refusal. The Tribunal found that the Applicant was not a person without legal experience or knowledge, but a barrister of 30 years' standing and that his breaches of confidentiality were unacceptable. For those reasons the Tribunal held that his conduct of the proceedings had been unreasonable and made an order for costs against the Applicant for any additional work resulting from the raising of the issue of indirect discrimination with regard to the pass mark a week before the hearing began."

So far as the substantive part of the decision is concerned, Dr Adoko attacks two aspects of this. First, he submits that the order that he should pay any costs occasioned by his late application to amend should never have been made. He submits that the findings that his conduct of the proceedings had been unreasonable were, in effect, perverse, and, further, that the issue of the pass mark was one that had always been raised in the proceedings. My reaction to the latter point is that if the amendment introduced nothing new it is hard to see the point of seeking to amend. But, having heard Dr Adoko in relation to the amendment, it does seem to me that although he had always complained of being refused transfer to the solicitors' profession, notwithstanding that he had achieved a pass mark between 40% and 43%, the further contention that this was indirectly discriminatory because it was in contrast to the pass level required from barristers who had practised within the jurisdiction was one which was not raised, at least on the pleadings, until he sought to raise it by amendment.

In any event it does not seem to me that this aspect of the proposed amendment was calculated to have resulted in any additional costs being incurred by the Law Society at all. That appears to be confirmed by the fact that, as Dr Adoko tells us, they have made no application to recover any costs in relation to that order. Had additional costs been occasioned by the late amendment which it is hard to imagine, I can see nothing wrong in principle at all with an order that Dr Adoko should pay those costs. That was likely to be an order of very little financial significance. In those circumstances, it seems to me that the decision of the learned judge that there was no justification for having a review of the original decision promulgated on 10th February, insofar as the object of this was to attack the question of costs, was plainly right. It would simply be a waste of considerable time and possibly money to ventilate an order which had had no practical effect at all.

Secondly Dr Adoko complains that his claim for damages for discrimination was stated in the decision to be dismissed when, in fact, he had withdrawn it. In my judgment, this technical complaint is of no significance and is, in any event, unfounded because where a litigant on the very eve of the trial indicates that he is going to withdraw a head of claim it is appropriate that the court should dismiss that head of claim. The reason for that, as appears from Dr Adoko's own argument, is that it prevents the same head of claim being raised again. He complains that it has that effect. In my judgment, it is highly desirable that, when a litigant withdraws a claim in circumstances such as those in this case, it is made quite clear that it cannot be revived. Again, that aspect of the decision itself, as it seems to me, cannot properly be attacked or made justification for a review.

As to the balance of the decision, the two orders made were orders of significance, but because they were orders that were made by consent and Dr Adoko has no complaint to make of them.

He has a more fundamental complaint which he has urged before us. His submission is that he had 17 grounds of complaint of the way in which the hearing before the Tribunal had been conducted and that the manner in which it had been conducted involved, in effect, breaches of natural justice of such a nature, whether individually or cumulatively, as to give rise to an arguable case that the entire procedure was a nullity. He complains that Mummery J - whose order is the one directly under attack - did not deal specifically or individually with these grounds and, furthermore, that the procedure under which these grounds were considered, which was a preliminary procedure adopted by the Employment Appeal Tribunal under a practice direction, was not an appropriate procedure for dealing with complaints of law as opposed to complaints of fact. That procedure is one which requires the court to consider an appeal to decide whether it is one that simply raises issues of fact and, therefore, one which does not fall within the jurisdiction of the appeal tribunal or whether it raises relevant issues of law. As the judge decided that it did not raise issues of law, it seems to me that no complaint can be made of his use of that procedure. The real question is whether he was right to form that view. It is also said that there was a breach of natural justice in that the chairman of the Industrial Tribunal sent a letter to the Employment Appeal Tribunal dealing with the allegations of misconduct that Dr Adoko sought to raise in relation to the dismissal of the review. Dr Adoko complains that he had no knowledge of the points that she made and has never seen sight of that letter. This court has no additional evidence in relation to that matter whatsoever. For myself, I would observe that my initial reaction to this is that it is plainly desirable in such circumstances that an applicant should be given sight of any comments made by the chairman of the Tribunal whose conduct the

applicant is attacking so that those matters can be dealt with by the applicant.

All 17 grounds of complaint have been raised before us. In the circumstances it seems to me right that I should look at the grounds that Dr Adoko has always sought to advance in support of his application that the decision should be reviewed. Although there are 17 grounds, a number of them cluster together in focussing on the same matters. His first ground is that the chairman asked favours from the respondent. His second ground is that the chairman accepted favours from the respondent. The third ground is that the chairman gave false justification for asking for the favours. What occurred happened at the end of the hearing and after the substantive orders had already been determined as a result of concessions made by both parties. As all too often, it seems that there were a considerable number of files of documents and that these files had been conveniently inserted into some form of portable holders to hold them for the convenience of the Tribunal. These holders had been provided by the Law Society. At the end of the hearing the chairman asked Lord Lester, in the presence of Dr Adoko and his counsel, if they could hang on to those holders. Dr Adoko's counsel, who has dealt with this matter in an affidavit, said his understanding was that the request that was being made was that they should become a permanent part of the Tribunal's equipment to assist in future hearings. The chairman of the Tribunal on the review application, when dealing with this, stated that the request was simply that they could hold on to the file holders so long as they held on to the files. There is there an issue. But, for myself, I take the same view as that taken by Dr Adoko's counsel which was that even if the Tribunal was asking whether they could keep these permanently as part of the Tribunal's equipment, that could not possibly be treated as asking for a favour giving rise to an indication of bias. For that reason, it seems to me that this cluster of 3 grounds of complaint is simply misconceived.

The next ground of complaint is that the respondent asked for further favours from the chairman and, as a result of the two requests for further favours, the chairman acted with manifest bias. The requests to which Dr Adoko refers are, first, the request that the chairman should provide full reasons setting out the course of the procedure for further reference; second, a

request in a letter of 25th January 1995 written by the solicitors acting for the Law Society to the regional chairman, not the chairman that had actually heard the matter on 25th January 1995, in these terms:

"Our clients have asked us to write to you to enquire about the Order which was made by consent on settlement of this matter on Wednesday, November 2nd. Our clients are concerned to receive the Order, because of continuing correspondence and negotiation with Dr Adoko. In asking us to write direct to you, our clients instruct us to make clear that they do not in any sense wish to express any criticism of the manner in which the case was dealt with by the particular Chairman, who conducted a difficult case with considerable patience and sympathy."

I can see nothing improper either in counsel for the Law Society requesting to have detailed reasons setting out the course of the procedure, nor for a request from the Law Society's solicitors, in effect, saying, "Could we, please, have the order as soon as possible?" Whether it was appropriate for solicitors to express any plaudits to the regional chairman as to the manner in which the particular chairman conducted a difficult case, I make no comment. It does not seem to me to be a matter of significance. So that I do not view either of these requests as requests for favours.

Moving on with the grounds of appeal, how is it that Dr Adoko suggests these requests were met in a way that was indicative of bias? First, he says that the bias is shown by the use of the word "dismissal" in relation to the charge which was withdrawn. I have already dealt with my view as to the propriety of the use of that word. I would simply observe, furthermore, that there is no possible linkage of the use of the word "dismissal" with either of the requests that were made. It is said that the chairman showed bias in complying with the demand for speedy promulgation of the decision. I do not know whether the promulgation on 10th February was relatively speedy or not. Equally, it cannot, in my judgment, constitute an allegation of asking for a favour and showing bias if a Tribunal is asked to produce the decision as soon as possible and it does so. Speaking for myself, that is a request I have often had and with which I have done my best to comply. I would never expect anybody to suggest that in so doing I was demonstrating bias.

It is said that there was a concealment of the gift received in that no mention of this was made in the ruling in relation to the review. I have already indicated that I cannot see any impropriety in relation to the circumstances in which the file holders were obtained by the Tribunal. It is said that further bias was shown by the chairman accepting a pat on the back. So far as there is a pat on the back, it was made to the regional chairman. I cannot see what conduct, if any, Dr Adoko is relying upon as indicative of an act showing bias by the chairman of the Tribunal herself.

There are a series of complaints - k, l, m, and n - first, of failure to give reasons for a decision of the chairman, using threats instead of giving reasons, denying a right to be heard contrary to natural justice and then giving reasons which are manifest errors of law for refusing the parties their right to be heard. Those all relate to what was plainly quite a vexed issue in relation to disclosure of the identity of individuals who were relied upon as being examples of more favourable treatment being accorded to others than to Dr Adoko, whose names came to light as a result of the discovery of documents. It is quite right that under our laws of disclosure, parties are not permitted to make any use of material disclosed except for the purposes of the proceedings in which disclosure is made. My initial reaction is that the attitude of the chairman of the Tribunal to the disclosure that was being made by Dr Adoko was justified. She was directing, in accordance with the law as she saw it, that disclosure should not be made and her directions were not being complied with by Dr Adoko. It may be - and I have not given the matter detailed consideration - that there was another argument that could be put forward in relation to this matter. All of that, it seems to me, is water under the bridge. The disclosures were made by Dr Adoko and this was simply part of the interlocutory procedures that were

going on prior to the ultimate decision. I cannot, for my part, see any basis on which it can be argued that these matters manifested breaches of natural justice which invalidated the entirety of the procedure.

Then there is a complaint that, contrary to the rules of natural justice, the chairman awarded costs against the wrong party. That can only relate to the costs thrown away by reason of the late amendment. I have already dealt with that matter. Then it is said that the chairman abused the power of her office by making herself a judge in her own cause. That, as I understand it, is a complaint that she was not the appropriate person to hear the review application, having regard to the fact that complaints were being made about bias on her part. I am not as familiar as is my Lord with the procedures in the Industrial Tribunal, but whether or not there is .....

THE APPLICANT: That was not the point.

LORD JUSTICE PHILLIPS: You tell me what the point was.

THE APPLICANT: The point was that the Law Society had written to the Chairman and said that they did not want the decision reviewed. I wrote to the chairman and told her I did not want review. Both parties had said so. She went on to review not as chairman but merely as a person defending herself; the whole review was the defence. She had ceased to act as a judge as we know it. She was now become a party.

LORD JUSTICE PHILLIPS: I had failed to appreciate the true nature of Dr Adoko's complaint. It was that the findings made by the chairman in relation to the application to review were really gratuitous in that neither side was asking her to make any finding at all and were in the nature of self-exculpation. She was sitting as a judge in relation to complaints being made against her. It does not seem to me that that particular ground of complaint is one that, in any way, bears on the merits of her original decision. But, equally, I hope Dr Adoko accepts that this court has independently considered the 17 grounds that he has sought to advance in attacking the way these matters have been conducted.

The final ground of appeal is that the chairman herself admitted that she gave a contrary verdict to the one given in the Tribunal. That, as I understand it, related to her order that Dr Adoko's claim of direct discrimination be dismissed when she recorded in the course of the hearing that it was withdrawn. That is a matter with which I have already dealt. For all these reasons, it seems to me quite clear that there were no valid grounds that justified a review of the decision promulgated on 10th February and, therefore, that the decisions in relation to that matter, taken one by one in the chain of orders to which I referred at the beginning of the judgment, were correctly made.

For those reasons I would dismiss this application.

LORD JUSTICE WAITE: I agree.

Order: Application dismissed.