Samuel v Home Office

On a renewed application for permission to appeal from a tribunal’s discretionary dismissal of a claim, the applicant must show a sufficient arguable case that the successive exercises of discretion were flawed in a way warranting appellate intervention. It is insufficient that the first decision appears harsher than an alternative order another tribunal might have made. Where the proposed appeal has no real prospect of success and raises no point of principle or practice requiring guidance, permission should be refused. The Court of Appeal accordingly refused permission.

An Employment Tribunal dismissed a racial-discrimination claim when the applicant failed to attend the hearing. On review, after hearing from him, it declined to reopen the matter. The Employment Appeal Tribunal dismissed his appeal and refused permission to appeal. A single Lord Justice also refused permission, and the applicant renewed the application before the Court of Appeal. He argued that an adjournment, with costs, was the proper response and that his claim was arguable. The central issue was whether the successive discretionary decisions disclosed an arguable error permitting appellate intervention.

1. Disposition. The renewed application for permission to appeal was refused. Lord Justice May agreed with the judgment of Lord Justice Judge.
2. Appellate threshold. The Court of Appeal was concerned with the original exercise of discretion by the Employment Tribunal, the decision on review, and the further exercise of discretion by the Employment Appeal Tribunal. The applicant therefore had to show a sufficient arguable case that those successive decisions were flawed to the extent that the Court of Appeal could properly interfere.
3. Assessment of the argument. The possibility that the original dismissal was harsher than another tribunal might have considered appropriate did not, by itself, establish an appealable error. The submission that an adjournment with an order for costs should have been made, relying on rule 9.3 of the 1993 Rules, did not overcome that difficulty.
4. Conclusion. The proposed appeal had no real prospect of success. It raised no point of principle or practice on which guidance from the Court of Appeal was required. The court consequently refused the application for permission.

1. Court of Appeal (Civil Division): Renewed application for permission to appeal refused: [2002] EWCA Civ 1521.
2. Employment Appeal Tribunal: Appeal dismissed on 22 May 2002 and permission to appeal to the Court of Appeal refused.
3. Employment Tribunal: Racial-discrimination claim dismissed on 29 January 2001 after the applicant failed to attend the hearing. On review, following a hearing with the applicant, the Tribunal declined to reopen the matter; its reasoned decision was delivered on 5 December 2001.