Garg v Wolverhampton Health Authority & Ors

J U D G M E N T

1. LORD JUSTICE PETER GIBSON: This is the much delayed hearing of an application for permission to appeal, several adjournments having been granted to the applicant, Dr Garg, at his request. He seeks permission to appeal from the order made by the Employment Appeal Tribunal ("the EAT") on 13th February 2003 on the preliminary hearing of an interlocutory appeal by him. The EAT dismissed the appeal which was from the case management decisions made by an Employment Tribunal ("ET") Chairman, Mr Crump, sitting alone at Birmingham, at a directions hearing on 2nd October 2001.

2. The case arises out of the employment of Dr Garg, which in practice came to an end as long ago as the end of 1992. Dr Garg worked as a locum consultant in psychiatry for the respondent, Wolverhampton Health Authority ("WHA"), from 22nd June 1991. On 30th March 1993 he presented an originating application to an ET, making WHA and a number of employees of WHA respondents. He alleged racial discrimination contrary to the Race Relations Act 1976. In his IT1 he said that he worked "up until 31.12.1992" and that his employment with WHA was "wrongfully terminated on 31st December 1992 without just cause or excuse." He also referred to his unfair dismissal.

3. WHA in its IT3 denied the allegation of racial discrimination, saying that his fixed term contract of employment terminated on 30th November 1992.

4. On 26th May 1993 he presented another originating application to determine questions, pursuant to section 9(1) of the Employment Protection (Consolidation) Act 1978, relating to deductions to be contained in pay statements, and section 101(1)(b) and (c) relating to redundancy payments. Again he stated that his employment ended on 31st December 1992. He complained he had been unfairly dismissed and he claimed a redundancy payment. Again WHA denied his claims.

5. At a hearing on 1st September 1993, when Dr Garg appeared in person and gave evidence, a full ET (with Mr Crump as Chairman) dealt with a number of preliminary issues as to whether his various complaints in the two originating applications were in time. WHA had said that they were not.

6. The ET's decision, with full reasons, was not sent to the parties until 16th December 1994. The ET decided that the application for a redundancy payment was in a time and that the ET had jurisdiction to deal with Dr Garg's discrimination claim, but it adjourned to a later hearing the question whether the unfair dismissal case was in time and whether he had sufficient continuous service to qualify for the remedies which he claimed.

7. At the hearing WHA conceded that Dr Garg was employed, as he had contended, until 31st December 1992. On the basis of the evidence which it heard and that concession, the ET found as a fact that Dr Garg was employed until 31st December 1992 when his employment terminated. The ET recorded that Dr Garg's complaint of discrimination was that the relevant act was his dismissal on 31st December 1992. The ET found that his originating application alleging discrimination was therefore presented within the statutory three-month period. All that was favourable to Dr Garg.

8. Dr Garg thereafter wanted to say that, contrary to what he had himself said in his originating applications, his employment had not ended on 31st December 1992 and that there was no claim for unfair dismissal or redundancy. He applied for a review on the basis that prior to the hearing he did not know that the ET would determine facts upon which to decide whether or not his applications were made in time, and that the ET did not have before it sufficient evidence. Mr Crump rejected that application by a decision sent to the parties on 17th January 1995.

9. Dr Garg appealed against both decisions of the ET. He alleged bias by Mr Crump. The EAT (the then President Morison J presiding) at a preliminary hearing of the appeal on 22nd July 1998, when Mr Garg appeared in person, noted that there was now a dispute as to whether Dr Garg's employment had ever been terminated. The hearing was adjourned until 8th February 1999. On 9th April 1999 Morison J, giving the judgment of the EAT, referred to the fact that the ET had adjudicated on Dr Garg as having been dismissed on 31st December 1992, and said that it was not for the EAT to reverse that finding of fact. The EAT dismissed the appeal on that point. On bias the EAT found nothing to justify the allegation made by Dr Garg.

10. Dr Garg sought to appeal to this court. On 6th March 2000 Sedley LJ, at a hearing attended by Dr Garg, dismissed the application, saying that the point on the date of dismissal was unarguable. On that point, with the decision of Sedley LJ, Dr Garg reached the end of the road. Nevertheless, he still continued and continues to say that his employment did not then end. He refuses to understand that it is not in the power of this court, or any other court or tribunal, to treat that point as not having been finally decided.

11. In the meantime, Dr Garg issued two writs against WHA in the High Court. The first action, commenced on 6th October 1995, was for damages and consequential loss arising out of personal injury sustained by him when performing his duties. The second was filed on 15th October 1998. It claimed damages for negligence and fraud and the recovery of salary arrears after 31st December 1992. The second action was struck out by Master Rose for want of prosecution and because the issue of recovering salary arrears had been concluded by the proceedings in which the date of dismissal had been held to be 31st December 1992.

12. Dr Garg sought to appeal to a High Court judge. Permission was refused by Gray J on paper and on a renewed application in court Wright J did likewise. That action is therefore dead and no step has been taken to prosecute the first action. I can see no realistic prospect of Dr Garg now being allowed to revive that stale action.

13. All the while the substantive claims made by Dr Garg in his two originating applications had not been tried. In an attempt to get things moving, Mr Crump, on 2nd October 2001, held a directions hearing at which Dr Garg was present in person. Counsel appeared for WHA. Counsel had put in written submissions. In paragraph 8 he had set out the various issues raised by Dr Garg relating to the allegation of racial discrimination. In paragraph 10 he set out certain new allegations which had been made by Dr Garg in further and better particulars. Many of those allegations were matters to which WHA objected. In paragraph 11 counsel referred to further complaints of racial discrimination, to which WHA again objected.

14. Mr Crump went through counsel's submissions with him and Dr Garg. He ruled that the allegations listed in paragraphs 8 and 10 of counsel's submissions were the issues on racial discrimination which fell to be decided by the Tribunal. He did not strike out any of them, despite WHA's objections. Mr Crump noted that Dr Garg himself had said that the matters referred to in paragraph 11 of the submissions were referred to by him only by way of background. That was noted by Mr Crump.

15. Mr Crump refused an application by Dr Garg for an adjournment pending the outcome of the two High Court actions. He dealt with applications by Dr Garg for witness summonses to be issued. One of them he allowed. The other two he refused.

16. Dr Garg on 5th October 2001, by letter to the ET, complained about the directions hearing. Mr Crump, by a letter dated 10th October 2001, responded to that complaint. He corrected certain misconceptions of Dr Garg. He explained what had been decided at the hearing, but that did not satisfy Dr Garg. By letter dated 30th October 2001 to the EAT, which the EAT took to be a notice of appeal, he appealed against the decisions of Mr Crump at the directions hearing. He complained of breaches of the Human Rights Act 1998, in that he says he was forced to represent himself whereas WHA had counsel. He complained that Mr Crump had refused his request for two witness summonses. He sought to raise again the date of termination of his employment, saying that the ET had found that date to be 31st December 1992 "for no good reason".

17. By a further letter of 23rd January 2002 to the EAT, Mr Crump set out more formally what took place at the directions hearing. He made clear that his directions on paragraphs 8, 10 and 11 of counsel's submissions were agreed, although Dr Garg asserted that there was no agreement. He said that on several occasions Dr Garg said that he wanted the ET to decide that he had not been dismissed on 31st December 1992 and that he was claiming unlawful deductions from his salary to which he would have been entitled since 31st December 1992. Mr Crump said that he had refused the request for the two witness summonses because the reason given by Dr Garg for the witnesses' attendance related to Dr Garg's continued employment after 31st December 2002.

18. The appeal came before the full EAT (the President Burton J presiding). In its judgment the EAT pointed out that Dr Garg could not challenge the finding that Dr Garg's employment had ended on 31st December 1992, and so any complaint about unpaid wages after that date fell away.

19. On an argument raised by Dr Garg that Mr Crump had erred in refusing the application for an adjournment pending the hearing of the High Court proceedings, the EAT pointed out that no steps had been taken in the first action since 1995 and that the High Court was unlikely to allow it to be reactivated. The EAT also pointed out that the second action had been struck out. It said that Mr Crump had properly exercised his discretion to refuse an adjournment.

20. On Dr Garg's complaint about the refusal to order two witness summonses, the EAT referred to the reasons given by Mr Crump why he had not made that order, viz. that it related to an irrelevant issue as to the date of the termination of employment and did not relate to the discrimination issue. The EAT helpfully pointed out to Dr Garg that if he could show that either witness had any evidence relevant to discrimination he might be able to apply again to Mr Crump for a witness summons. But the EAT said it was impossible to say that Mr Crump had exercised his discretion wrongly. Accordingly, the appeal was dismissed.

21. Dr Garg applied for permission to appeal. That was refused by the EAT, as was an application for a review. One of the grounds for the latter application appears to have been that the EAT had not read the papers and had not looked at relevant authorities. That was expressly refuted by the EAT.

22. Dr Garg now applies to this court. He continues to appear in person. His grounds of appeal run to nine closely typed pages. He has also sent a skeleton argument, which contains a bitter attack on what he says has been the failure by the ET, the EAT and the courts to take any account of what he calls the institutional racism in the NHS. He complains that the tribunals and courts have dealt with the case as if WHA is in the right and could not fail to be telling the truth. He has referred me to an article about an Indian doctor who has been awarded a large sum of money by an ET. He has also provided a bundle containing papers relating to bankruptcy proceedings instituted by WHA against him. They include the judgment of a deputy judge of the Chancery Division allowing Dr Garg's appeal.

23. I am afraid that in providing so much documentation that is wholly irrelevant to anything I have to decide, Dr Garg misunderstands what is relevant on the application for permission for his proposed appeal. As I have explained to him, he has to show that he has a real prospect of succeeding on his appeal from the EAT's order dealing with the very limited matters the subject of decision by Mr Crump on 2nd October 2001. Whether Dr Garg is right about his complaints of racial discrimination against WHA in 1992 has not yet been determined. It will be determined when at last the hearing of his complaints takes place.

24. The main points taken by him appear to be these. First, he complains about what he considers was the procedural injustice he suffered before the EAT. He says that he was not given the two-hour hearing he requested, the hearing being listed for one hour. But that is in accord with the EAT practice. Indeed, it is set out in the Practice Direction. No litigant can be allowed to dictate how much time should be given to him. Tribunals, like courts, must control proceedings before them, mindful of all the other demands on their time from other litigants. He complains that Burton J was slapdash, continuously interrupted him and did not want to listen to anything he said. So far from that being apparent from the papers before me, the full and detailed judgment given by the judge suggests precisely the contrary. I do not doubt that the judge tried to steer Dr Garg away from points on which the EAT could do nothing to help Dr Garg, such as the termination date of his employment.

25. It is apparent that Dr Garg is not prepared to accept anything that he feels wrong, however hopeless it is in law, even if it means contradicting the way he himself had put his case at an earlier stage.

26. One point taken is that the judge said (at paragraph 10 of the EAT judgment):

"[Dr Garg] has submitted before us today, although we have not looked at the Originating Applications, that, indeed, unfair dismissal and redundancy do not even form part of his claim."

I think that Dr Garg may have misunderstood what was said. The EAT was merely saying that when Dr Garg was making his submissions he did not take the EAT to the originating applications. I add that, if he had done so, the absurdity of his submission that unfair dismissal and redundancy did not form part of his claim would have become immediately apparent. Further, I have already referred to the fact that the EAT expressly stated, on refusing the review, that it had read the papers in advance. In short, I see no real prospect of Dr Garg succeeding on this ground.

27. Second, he complains of a breach of his human rights in not having counsel to appear for him, whereas WHA has been represented by counsel throughout. Dr Garg points to no authority to support his submission, and I am afraid it is wrong. The European Court of Human Rights does require the State to provide legal representation in criminal cases and in certain limited types of civil cases of particular seriousness to the complainant. But I can see no good reason why legal representation must be provided in a case such as the present. Dr Garg is plainly an intelligent man and there is no reason at all why he cannot adequately present his own case.

28. Third, he describes as "fundamentally flawed" the EAT's decision that in so far as Dr Garg complained about non-payment of wages in 31st December 1992 that cannot be pursued. Again, that is a hopeless contention, in view of the fact that by reason of the prior decision of the ET, EAT and Sedley LJ, he ceased to be an employee of WHA on 31st December 1992. Further, the same claim has already failed in the second High Court action.

29. Fourth, he suggests that the EAT attempted to strike out a wages claim for a period prior to 31st December 1992, being deductions of rent from salary without his consent. That is incorrect. Dr Garg has already succeeded in his contention that his employment did not terminate on 30th November 1992 but went on until 31st December 1992, and he accepts that a cheque for £3,067.27 was sent to him but not cashed.

30. Fifth, he challenges Mr Crump's refusal of the adjournment which Dr Garg requested pending the resolution of the High Court proceedings. He says that the actions can be reactivated. In my judgment, for the reasons I have already given, it is most improbable that the first action can now be revived, and the second action has already been struck out and cannot be revived. In any event, it is impossible to say that Mr Crump erred in the exercise of his discretion in refusing to stay the ET proceedings, which could be heard quickly and should not have to await the outcome of the High Court proceedings.

31. Sixth, he challenges Mr Crump's refusal to order two witness summonses. Again, that is hopeless. Mr Crump was plainly right to refuse to make that order for the reason he gave.

32. I have considered all the points raised by Dr Garg, but I am afraid I have reached the clear conclusion, as any objective observer would, that there is no real prospect of success on any of his grounds of appeal. No other compelling reason has been shown why this appeal should go ahead. I must therefore refuse this application.

ORDER: Application for permission to appeal refused.

(Order not part of approved judgment)