Deman v University Of Bradford & Ors

A last-minute adjournment request in permission-to-appeal proceedings may be granted where unresolved public-funding arrangements affect the applicant’s ability to secure identified legal representation, and counsel’s assistance would materially help the court. The court may balance the resulting delay against the need for a fair and properly argued hearing. Subsequent events may also reduce or remove the practical utility of a proposed appeal. Where the underlying tribunal hearing has taken place, issues concerning that hearing may be more appropriately raised in an appeal against the resulting determination.

Two applications for permission to appeal were before the Court of Appeal. The first concerned the dismissal by the Employment Appeal Tribunal on 22 April 2002 of claims against the Association of University Teachers alleging race discrimination and victimisation. The second concerned the Employment Appeal Tribunal’s dismissal on 24 May 2002 of an appeal against refusal to transfer or adjourn preliminary proceedings involving the University of Bradford.

By the time of the Court of Appeal hearing, the Bradford preliminary hearing had taken place and had produced a determination in which the applicant succeeded in part. He intended to challenge the unsuccessful aspect before the Employment Appeal Tribunal. The immediate issues were whether both applications should be adjourned to allow representation and advice, and whether the proposed Bradford appeal had been overtaken by subsequent events.

Applications adjourned. Lord Justice Mummery considered that the applicant’s request was made at the last minute and that adjournments caused delay and disruption to other litigants. Nevertheless, it was appropriate to adjourn both applications.

1. The applicant had an unresolved application for public funding and sought representation by identified counsel, Mr Davis. Counsel’s availability was affected by another employment tribunal hearing. The court considered that his assistance could materially help it determine whether permission to appeal should be granted.
2. The adjournment was granted on the expectation that, unless satisfactorily explained, Mr Davis would appear at the resumed applications and provide skeleton arguments addressing both matters.
3. The proposed Bradford appeal appeared to have been overtaken by events. The challenged refusal to transfer or adjourn the tribunal hearing could no longer be implemented because the hearing had proceeded and a determination had been made. Arguments concerning that hearing could be raised in the applicant’s proposed appeal to the Employment Appeal Tribunal against the part of the determination adverse to him.
4. Although the court was initially minded to dispose of the Bradford application, it considered that both applications should be adjourned so that counsel could advise comprehensively on the applicant’s position.

Both applications were adjourned for one month and were not to be relisted before 26 October 2002. Skeleton arguments in support of both applications were directed to be prepared by Mr Davis, subject to public funding. The applicant was also directed to clarify with the Civil Appeals Office the position concerning amended grounds and a skeleton argument relating to the Association of University Teachers application, and to ensure that those documents were available for the resumed hearing.

1. Court of Appeal (Civil Division): the two permission-to-appeal applications were adjourned for one month by order dated 25 September 2002, with directions concerning representation and skeleton arguments: [2002] EWCA Civ 1455.
2. Employment Appeal Tribunal: an appeal concerning the Association of University Teachers proceedings was dismissed on 22 April 2002. A separate appeal concerning refusal to transfer or adjourn the Bradford proceedings was dismissed on 24 May 2002.
3. Employment Tribunal: the Association of University Teachers claims had been dismissed in extended reasons dated 23 April 1999. The Bradford preliminary hearing subsequently proceeded and resulted in a determination in which the applicant succeeded in part.