Bertolin v Thornbury Estates Ltd

LORD JUSTICE SEDLEY: There is a long and complex history to this case. It began as a claim for sex discrimination and related wrongs against Miss Bertolin’s former employers. But it is not necessary to set the detail out.

Today’s issue begins from the decision of the Employment Tribunal on 7 June 2005, which was the day set for a five-day hearing of her case, to refuse her a postponement and instead to strike out her entire claim for unreasonable conduct and for non-compliance with the Employment Tribunal’s directions. Additionally, and perhaps drastically, Miss Bertolin was ordered to pay £10,000 towards the respondent employer’s costs.

She was represented throughout by her partner Mr El Boraei. On her behalf, Mr El Boraei gave notice of appeal to the Employment Appeal Tribunal. The central ground was bias in the Chairman who had given many of the directions. The EAT sat on 22 February 2006 on a preliminary hearing to decide whether the grounds of appeal were viable. The day before, 21 February, a letter had been sent by Miss Bertolin asking for the hearing to be postponed because of her ill health. The EAT did postpone it, but only for long enough to give her an opportunity to provide a medical report showing specifically, first of all, whether and why she was not fit even to attend a preliminary hearing at which Mr El Boraei would be speaking for her and only questions of law would be debated; and secondly, if she was unfit even for this, when she would be fit to attend, and if bias remained an issue, to be cross-examined about it.

No such report was produced. On 3 March Miss Bertolin wrote resending the report which she had earlier sent in from her psychiatrist. It was dated 16 February 2006 and summarised her condition as reactive depression with a phobic anxiety state. It gave a prognostic recovery date not less than six months hence. It was evident that the EAT had not, however, considered this report adequate: hence its order. On 10 March Miss Bertolin wrote asking for an extension of one month for compliance, because her doctor was going to be away for three weeks. On 16 March however the EAT reconsidered the appeal and struck it out. It struck it out for non-compliance with its order, and not on the basis of a reasoned consideration of the grounds. It noted that the psychiatrist’s report that had now been submitted was the insufficient one which had led to the order in the first place, and that the letter seeking a further month for compliance did not explain why the doctor had not been approached for two weeks after the EAT made its order, nor what other steps had been taken to comply with that order.

Miss Bertolin has now applied to this court for permission to appeal. Pill LJ has refused permission on sight of the papers and the application has been renewed before me. I have had to adjourn it more than once in response to difficulties that Miss Bertolin has encountered in securing representation, but today she has had the good fortune by virtue of the Direct Access Regulations to secure representation by Mr Ike Ehiribe, who if I may say so has done an outstanding job on her behalf.

The principal ground for seeking leave to appeal to the Court of Appeal is that the EAT acted precipitately in dismissing the appeal when it knew that the psychiatrist was not yet available to give the further evidence they required about Miss Bertolin’s incapacity. A letter has been produced in support of this ground, written by the psychiatrist on his return on 2 April 2006. It protests about the lack of notice but goes on to give a diagnosis and prognosis which are in substance identical to those set out in the report which had been twice submitted to the EAT before it made its successive orders. The letter still contains nothing to show why Miss Bertolin could not cope with the preliminary hearing which was to be conducted, one recalls, by her partner, and which involved only arguments on the documents. Nor does it say when, if at all, she might be fit if required to be cross-examined on her allegation of bias.

Mr Ehiribe submits that, with all its faults, this correspondence nevertheless amounts to substantial compliance with the EAT’s order. Pill LJ considered that the EAT’s action was justified because of non-compliance. For my part I would approach the matter rather differently. First of all, the Employment Tribunal’s decision to proceed with the hearing and to strike out the claim is on the face of it a properly reasoned decision. Much of the appellant’s notice of appeal to the EAT is nevertheless taken up with rearguing the history on which the Employment Tribunal had already made clear factual findings. Paragraph 10 of the grounds of appeal to this court now accepts the Employment Tribunal’s finding that the real reason for seeking a postponement of the hearing was to get the allegations of bias against the Chairman who heard first, but they reiterate that Miss Bertolin’s illness was also a genuine ground.

Now it is right to say that the allegations of bias, when one looks at them with care, are not personal. In other words, they do not suggest that there was some private hostility which the Chairman was manifesting towards Miss Bertolin. They are, in substance, that the successive interlocutory orders made by him consistently went in favour of the respondents and handicapped Miss Bertolin in the conduct of her case. So understood, there was no real likelihood of Miss Bertolin ever needing to be cross-examined before the Employment Appeal Tribunal about them. They would stand or fall, and in my judgment I am afraid they were going to fall, by examination simply of the written record. The real issue for the EAT was therefore why it should postpone any further its preliminary hearing of the question whether this appeal was viable and its decision on that question.

Perhaps Mr Ehiribe’s best point is the one that he puts at paragraph 8b of the skeleton argument that he has helpfully submitted for today’s hearing:

It seems to me a good point that the EAT was not bound simply to make an order dismissing the appeal for non-compliance with its previous orders about the submission of medical evidence and so forth. Indeed, if there is an obvious error of the Employment Tribunal to which the notice of appeal draws specific attention, it is strongly arguable that the EAT has got to let the appeal go ahead with or without preliminary argument. I accept also that the EAT on a preliminary hearing has to judge the grounds of appeal on their merits, whether or not the appellant appears and argues in support of them. It might therefore have been better had the EAT given a reasoned judgment, albeit in Miss Bertolin’s and Mr El Boraei’s absence.

But this hearing -- the abortive one before the EAT -- was designed precisely to let Mr El Boraei show them, if he could, that he had a viable appeal on one or more issues, because on the face of it the notice of appeal did require substantiation by argument. It may be some consolation to Miss Bertolin, though I doubt whether it will be in the circumstances, that the grounds of appeal, although excellently crafted by Mr El Boraei, needed to disclose some error of law and not simply a disagreement about the facts and were, at least in my present view, very unlikely to pass muster on this score had the argument been fully conducted on them.

But the EAT did not proceed in that way. They proceeded, as they were entitled to do, upon the basis that there had been non-compliance with their order so as to entitle them under the rules to strike out without more. They did not insist on going ahead on 22 February when the preliminary hearing was first listed. They postponed it at Mr El Boraei’s request to give Miss Bertolin a chance to show why fairness required it not to take place until she was well enough to take part, and in their judgment, which in my view was a sustainable judgment, she failed then and has failed since to produce any such evidence.

In these circumstances I am afraid it seems to me that there is no realistic prospect of Miss Bertolin, even with Mr Ehiribe’s help, satisfying this court that the EAT erred in legal principle in dismissing the appeal on the grounds set out in writing in its order of 16 March 2006.

Mr Ehiribe has stressed that one of the obligations that a court has is to maintain some sort of equality between represented and unrepresented parties. Any justice system has, I accept, to do this, but it also has to find a working balance between the need to accommodate a litigant’s medical frailty or lack of representation and the need for litigation, in the interests of both parties, to be brought sooner or later, and preferably sooner, to a conclusion. Both the Employment Tribunal and in turn the EAT were seeking to do this and I do not think that either of them arguably erred in law in the way they went about it, painful though the outcome has to be for Miss Bertolin.

The respondents have asked the court to make a Civil Proceedings Order against Miss Bertolin. Pill LJ considered that inappropriate at this stage and so, very emphatically, do I. Civil Proceedings Orders are not to be lightly made, especially where there has been only a single set of proceedings, however complex or long drawn out they were. I am sorry that the respondents even thought fit to make the application. But the application of Miss Bertolin for permission to appeal has itself to be refused for the reasons that I have endeavoured to give.