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

Where related applications for permission to appeal from the Employment Appeal Tribunal raise novel or complex questions of statutory construction or procedural doctrine, the Court of Appeal may adjourn them to a full court. Any substantive appeals may then follow immediately if permission is granted. This approach may be appropriate instead of determining prospects of success at a preliminary hearing, particularly where the applications involve time limits under the Race Relations Act 1976, abuse of process or issue estoppel. The procedure does not determine the merits of the underlying claims.

Four related applications arose from race-discrimination claims by Mr Chaudhary. In the Southampton case, concerning eligibility for the specialist registrar grade, he had failed before the Employment Tribunal and Employment Appeal Tribunal and sought permission to appeal. In the Manchester case, concerning abuse of process and issue estoppel on a strike-out application, he had succeeded below and the respondents sought permission to appeal. Two further related cases concerned entry to the specialist register and the interpretation and application of section 54(2) of the Race Relations Act 1976; Mr Chaudhary sought permission after unsuccessful decisions. The central issue was how the several permission and related applications should be managed.

Lord Justice Mummery gave a single judgment dealing with all the applications.

1. Disposition. All applications for permission to appeal, together with any related applications which might subsequently be required, were adjourned to a full court. The direction was that any substantive appeal should follow immediately in each case for which permission was granted.
2. Reason for the course adopted. The applications raised novel or complex issues. These included the time-limit provisions in sections 68(1), 68(6) and 68(7) of the Race Relations Act 1976, the application of abuse of process and issue estoppel in the employment tribunal system, and the interpretation and application of section 54(2) of that Act. In those circumstances, the judge considered that the cases were unsuitable for the usual preliminary assessment of whether an appeal had a real prospect of success. The parties agreed that permission should instead be considered by the full court with the substantive appeals, if permitted, heard immediately afterwards.
3. Case management. Directions were given for revised notices of appeal, skeleton arguments, agreed bundles of authorities and legislation, fresh appeal bundles, an agreed chronology and an outline of the issues. The proposed four-day listing and the availability of counsel were identified as relevant matters. The suggested order of hearing was provisional. No order for expedition was made.
4. Effect of the order. The Court of Appeal made no determination of the substantive race-discrimination, limitation, estoppel, abuse-of-process or statutory-construction issues.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 1166, the applications for permission to appeal were adjourned to a full court, with any permitted substantive appeals to follow immediately.
• Employment Appeal Tribunal: The judgment records unsuccessful appeals by Mr Chaudhary in the Southampton and specialist-register proceedings, and success by him in the Manchester proceedings.
• Employment Tribunal: The underlying proceedings concerned claims of race discrimination. The judgment records the differing outcomes in the three groups of proceedings.