Deman v London Business School & Anor

When deciding whether to reinstate an application following non-attendance, the court must consider whether refusal of an adjournment would frustrate justice because illness came upon the applicant. That principle does not require reinstatement where the applicant was expected to be represented and the real difficulty was a failure to arrange representation. The apparent merits may also be considered. A proposed appeal with little prospect of success is less likely to justify relief, particularly where the challenged tribunal decision was a proper exercise of discretion within its powers and the applicable rules were observed.

Mr Deman applied to reinstate his application for permission to appeal after Lord Justice Mummery dismissed it in his absence on 6 February. The proposed appeal concerned the Employment Appeal Tribunal’s refusal of permission to appeal from an employment tribunal’s dismissal, following his non-appearance, of a race discrimination complaint against London Business School and one of its professors. Mr Deman relied on ill health, including a doctor’s certificate and a visit to his general practitioner, and explained that intended arrangements for representation had failed. The issues were whether the new information justified reconsidering the adjournment decision and whether the proposed appeal had sufficient merit.

1. Application refused. Lord Justice Sedley considered the additional health information in fairness, on the basis that Lord Justice Mummery would have considered it had it been available.
2. The refusal of an adjournment is discretionary. The discretion should not be exercised so as to frustrate justice where the difficulty has arisen through illness which came upon the applicant. That principle did not apply here. Mr Deman and the court expected him to be represented, and his non-representation resulted from a failure to make arrangements rather than sudden illness or accident. His health was therefore irrelevant to the adjournment decision, and the further information would not have altered it.
3. The underlying merits are relevant in applications of this kind. The court may show greater sympathy where the proposed case is manifestly good, and less where it is manifestly poor.
4. The proposed appeal had very little, if any, prospect of success. The employment tribunal’s decision was an exercise of discretion within its powers, and the applicable rules had been properly observed, as the Employment Appeal Tribunal had pointed out. Lord Justice Sedley agreed with Lord Justice Mummery’s assessment and refused to reinstate the permission application.

The formal order was: application refused.

• Court of Appeal (Civil Division): on 30 March 2001, Lord Justice Sedley refused the application to reinstate the permission application: [2001] EWCA Civ 547.
• Court of Appeal (Civil Division): on 6 February 2001, Lord Justice Mummery dismissed Mr Deman’s application for permission to appeal against the Employment Appeal Tribunal’s refusal of permission.
• Employment Appeal Tribunal: refused permission to appeal from the employment tribunal’s decision.
• Employment tribunal: dismissed the race discrimination complaint following Mr Deman’s non-appearance.