Chaudhary v Royal College of Surgeons Of Great Britain & Ireland & Ors

Where an application for permission to appeal raises substantial additional arguments or potentially material fresh evidence, the Court of Appeal should have the relevant material before it and hear the respondents before determining the application. An adjournment is appropriate where the court’s papers omit an important skeleton argument. The applicant should also be warned that, unlike in tribunal proceedings, costs may follow the event in the Court of Appeal.

Mr Chaudhary, a surgeon, complained to the Employment Tribunal that racial discrimination had affected his access to a National Training Number during the introduction of the Specialist Registrar grade. The tribunal dismissed the complaint as out of time and refused under section 68(6) of the Race Relations Act 1976 to extend time. The Employment Appeal Tribunal also rejected his appeal.

He applied to the Court of Appeal for permission to appeal. He relied on a potentially material comparator discovered after the tribunal’s decision, additional arguments concerning prejudice, and a detailed skeleton argument that was missing from the court papers. The central issue was whether permission should be determined immediately or after the respondents had been given notice and an opportunity to respond.

1. The application for permission to appeal was adjourned to be heard on notice to the respondents. The court should not decide the application without considering the applicant’s substantial skeleton argument and the supplementary material.
2. The proposed comparator constituted potentially fresh evidence which might support a future application to adduce additional evidence. Its possible relevance to the strength of the discrimination claim could bear on the tribunal’s discretion to extend time under section 68(6) of the Race Relations Act 1976.
3. The applicant’s further argument relied on remarks in Barlow v London Borough of Southwark, an Employment Appeal Tribunal decision. The court did not determine the substance of that argument, but directed that the relevant material be served so that both parties could address it.
4. Lord Justice Mummery warned that costs consequences differ between tribunal proceedings and the Court of Appeal. If the applicant failed at the contested permission hearing, or on any subsequent appeal, the respondents might seek costs, since the general rule in this court is that costs follow the event.

The matter was refixed for a hearing on notice. The new skeleton argument, supplementary and additional arguments, and a copy of the judgment were to be served on the court and the respondents.

• Employment Tribunal: The complaint was held out of time. On 25 June 1999, the tribunal refused to extend time under section 68(6) of the Race Relations Act 1976.
• Employment Appeal Tribunal: Mr Chaudhary was unsuccessful on appeal.
• Court of Appeal (Civil Division): The permission application was adjourned to be heard on notice, with further materials to be served.