Lawal v Foster & Anor

An appellate court should interfere with a discretionary decision only where it was made contrary to legal principle, relevant matters were ignored, or the result was one no properly directed tribunal could reach. An employment tribunal may require a deposit as a condition of continuing proceedings where the claim has no reasonable prospect of success and the claimant can pay. Failure to pay may justify striking out the claim. Requiring a modest deposit within the claimant’s means, where proceedings reasonably appear probably unfounded, is not arguably inconsistent with Article 6. Permission to appeal was therefore refused.

Mr Lawal applied to the Employment Tribunal alleging race discrimination and victimisation in connection with recruitment by the Chesterfield Law Centre and Tricia Foster. At a pre-hearing review, the tribunal ordered him to pay a £150 deposit after concluding that his claim had no reasonable prospect of success and that he could afford the payment. When he failed to pay, his originating application was struck out.

The Employment Appeal Tribunal dismissed his appeal at a preliminary hearing on 10 September 2001, rejecting alleged errors of law and treating the Article 6 argument as unarguable. Mr Lawal then applied for permission to appeal to the Court of Appeal. The central issues were whether the tribunal had exercised its discretion lawfully and whether the deposit requirement was compatible with Article 6.

The application for permission to appeal was refused. Lord Justice Mummery proceeded on the papers because Mr Lawal had received notice of the hearing but did not attend or contact the Civil Appeals Office.

1. The case concerned an appeal against the exercise of a discretion. The Court of Appeal would intervene only if the decision was contrary to legal principle, failed to take relevant matters into account, or was one which no tribunal properly directing itself could have reached.
2. The Employment Tribunal Chairman was entitled to conclude that the proposed discrimination and victimisation claim had no reasonable prospect of success. It was therefore open to him, under Rule 7(4), to order payment of a deposit as a condition of proceeding. Under Rule 7(5), he had to satisfy himself that Mr Lawal could pay the deposit, and the evidence of income entitled him to find that the £150 payment was affordable.
3. The Employment Appeal Tribunal had correctly concluded that the Chairman had acted within the scope of his discretion and on a proper basis. The further complaints about the form of the decision, the date and evidence of the tribunal’s order, and alleged conspiracy or equitable fraud disclosed no arguable error of law.
4. The Article 6 argument had no real prospect of success. Requiring one party to make a modest payment within his means as a condition of continuing proceedings, where the proceedings reasonably appeared likely to be unfounded, was not arguably a breach of Article 6 of the European Convention on Human Rights.
5. Because Mr Lawal failed to pay the deposit, striking out the proceedings was a proper consequence. The Court agreed with the reasons of both tribunals and refused permission to appeal.

• Court of Appeal (Civil Division): On 20 November 2001, Lord Justice Mummery refused permission to appeal: [2001] EWCA Civ 1812.
• Employment Appeal Tribunal: On 10 September 2001, it dismissed Mr Lawal’s appeal at a preliminary hearing, finding no error of law in the Employment Tribunal’s decision.
• Employment Tribunal: At a pre-hearing review on 1 February 2001, it ordered a £150 deposit. Following non-payment, the originating application was struck out on 20 March 2001.