D'Silva v University College Union & Ors

There are three appellants’ notices before the court. They all relate to the same issue and seek exactly the same relief.

Dr D’Silva, the applicant, has been litigating in the Employment Tribunals against his union. In the course of the litigation, an appeal by Dr D’Silva reached the Employment Appeal Tribunal. It came for directions on the papers before Judge McMullen QC on 29 September 2008.

Among the papers before him was a letter which had been sent on 29 August 2008 on Dr D’Silva’s behalf by the Council for Ethnic Minority. The letter set out some assertions about persons who had been involved in an adjudicative capacity in the case of an earlier stage and then said:

“In view of the above background we strongly urge you to disclose members of the judiciary and your connections with Zionist Labour Party mafia and Employers.”

It was addressed to the registrar at the Employment Appeal Tribunal. Having this before him, Judge McMullen took understandable offence at it. He declined to make any such disclosure and made an order which read as follows in its material part:

“Upon a Notice of Appeal received on the 2^nd day of July 2008.

Before I make orders in this appeal I will expressly dismiss the applications made by Council for Ethnic Minority for disclosure of judges’ interests. I reject as repugnant the unspecified stereotypical racism in their letter of the 29^th day [of] August 2008 concerning Zionism and party politics.

In accordance with paragraph 11 of the Employment Appeal Tribunal Practice Direction 2008, I will stay the Notice of Appeal pending reference to the Respondents, the Employment Judge and the Members of Notice of Appeal paragraphs 14-20, the affidavit of Mr Graham paragraphs 1-4, and the affidavit of the Claimant paragraphs 3-7 insofar as they relate to the allegations of bias against the Employment Tribunal only, and not in respect of criticisms of Counsel.

IT IS ORDERED THAT:”

and there follow serially the substantive orders that Judge McMullen proceeded to make and to which no objection is taken.

Dr D’Silva was offended by the inclusion in a formal order, which was accompanied by no reasoned judgment, of words which he regards as prejudicial to him in the eyes of any future judge or judicial officer before whom the papers in this appeal might come. If, however, the words were properly there, he must live with them. The question is whether they have any place in an order.

Pursuing the matter in proper fashion, Dr D’Silva applied to Judge Birtles to review Judge McMullen’s order. This Judge Birtles declined to do. He himself had meanwhile been challenged to declare his interests in the following terms contained in a letter of 5 January 2009 from Dr D’Silva himself.

“1.

Judge Birtles failed to disclose his own and his wife’s affiliations with the Labour Party, as there was a conflict of interest. I would like Judge Burltes to confirm that Patricia Hewitt is his wife and his afflictions with the Labour Party and that she was a Labour MP (see attachment).

2.

My main representative and I have complained against the Labour Party and its unions such as the UCU which is front trade union organisation. The respondent in my case, Mr P. Mackney, Ex General Secretary is a member of the National Executive Council of the Labour Party and therefore there is a conflict of interest.”

The letter went on to refer to the well known Pinochet case.

Judge Birtles made an order, paragraph 9 of which simply read:

“The application by the Appellant to vary the Order of His Honour Judge McMullen QC dated the 26^th day of September 2008 was refused.”

Separately Judge Birtles set out in short form his reasons, which included the following:

“2.

The Appeal is against the decision of an Employment Tribunal. The Respondents are a trade union and three individuals. I have no connection with any of the four Respondents or any knowledge of them or their membership of any political party.

3.

I am not a member of the Labour Party. My wife’s political affliction has nothing to do with how I follow my judicial oath. I have no knowledge of any complaints Dr D’Silva or his representative have made against the Labour Party. In any event that is irrelevant.”

Subsequently Judge Birtles was asked to review his own decision but declined to do so; hence the application to this court.

The variation which was sought from Judge Birtles and is now sought by Dr D’Silva in this court is simply the removal from Judge McMullen’s order of the second sentence of the passage beginning “I reject as repugnant”. Rightly, the demand that the judges should have disclosed their affiliations or connections is not pursued for reasons I turn to now.

It needs to be made very clear that that no litigant is entitled to handpick his court by demanding information which may with luck enable him to challenge a judge for bias. The reason is that the judicial oath itself puts every judge on guard against trying a case in which a reasonable and informed observer might think that he or she has a pre-conceived view. As I said in the course of argument, one member of this court has stood down for that very reason. But that does not entitle litigants to trawl for grounds, especially when a request is as offensively put as this one was.

It is unsurprising that Judge McMullen was offended by it. It was also requisite that his refusal of the request should feature in his order. What it was in my judgment unnecessary for him to do was to add the second sentence which I have quoted. This, while expressing an understandable view (albeit in perhaps a stronger language than most judges would have used), had no formal role in the disposal of the appeal. It is only the formal disposal of an appeal or application to which an order may properly relate.

By contrast, Judge Birtles can be seen to have made an order in proper form, simply dismissing the application for review and giving his reasons in a separate document from which I have quoted. If there is any criticism to be made of what Judge Birtles wrote it is that it was more generous to Dr D’Silva and went further than was necessary. Judge Birtles had no need whatever to explain himself. No full-time judge in this country today is a member of any political party and no litigant is entitled to interrogate any judge about his or her spouse. If the judge is married to someone whose interests may be thought to conflict with those of a party to proceedings, the judge will say so and will ask if anyone objects. Frequently there is no objection. If there is an objection, the judge will have to decide whether it is a sound one. Parties are of course fully at liberty to remind judges that this is the law and the practice, but they are not at liberty to cross-examine judges about it or to make offensive assertions in support of it.

For the Union, Mr Bruce Gardiner has attended today and the court is indebted to him and his clients for doing so. He has realistically accepted that the words of which Dr D’Silva complains have no place in the order and has no objection to their excision (although their excision would only be in order that they may stand independently as reasons if anybody wants Judge McMullen’s reasons for his order in the future). In those circumstances, for my part I would grant permission to appeal and deal with the appeal on the spot. I would make the order which Ward LJ is about to propose and with which I agree.

I agree with what my Lord has said. The preamble to this order containing the two paragraphs which set out what is in effect the judge’s reasons should in my judgment be entirely removed from the order, and the order should be amended so that: a) those paragraphs are deleted, and then the first order made will be that the application made by the Council for Ethnic Minorities for disclosure of judges’ interests be dismissed; b) the appeal be stayed, and the order continuing in that way.

Orders reflect the judgment. The reasons for the orders are to be contained in the judgment, not in the order. To that extent I too would give permission to appeal and allow the appeal with the order to be amended as I have indicated.