Obasa v Chisholm & Ors

An appellate tribunal’s refusal to adjourn is a discretionary case-management decision. An appellate court may intervene only on established grounds for reviewing discretion, including where no reasonable judge acting fairly and judicially could have reached the decision. Under the European Convention on Human Rights Article 6.1, the question is whether the refusal denied effective access to the tribunal by making it practically impossible for the litigant to present the case properly and satisfactorily or causing obvious unfairness. The assessment is fact-sensitive. A short, straightforward appeal, a litigant’s familiarity with the issues, assistance given by the tribunal, repeated prior adjournments and the need to bring litigation to an end may justify proceeding without further adjournment.

The appellant brought race- and disability-discrimination claims arising from her employment with Northamptonshire County Council. The Employment Tribunal held that it had no jurisdiction over some claims because they were out of time and dismissed the remainder on their merits.

After a preliminary appeal, the Employment Appeal Tribunal allowed one narrow issue concerning an alleged duty to maintain an internal transfer policy to proceed. There were repeated difficulties involving the appellant’s legal representatives. At the substantive hearing, the appellant appeared without representation and sought a further adjournment because she lacked papers and was dissatisfied with the prepared skeleton argument. The Employment Appeal Tribunal refused the adjournment, allowed a short period to review papers, and dismissed the appeal.

The central issue was whether refusal of a further adjournment was an improper exercise of discretion or denied effective access to the tribunal and a fair hearing.

1. Application refused. The Employment Appeal Tribunal’s decision to refuse an adjournment beyond 2 pm was a discretionary case-management decision. The Court of Appeal would not interfere merely because it might have exercised the discretion differently. Under Hadmore Productions v Hamilton [1983] 1 AC 191, intervention required a decision so unreasonable that no reasonable judge, acting fairly and judicially, could have reached it. The tribunal also had to act consistently with its overriding objective under Practice Direction 9(1).

2. The Employment Appeal Tribunal had a general power to give case-management directions, but those directions had to be consistent with the overriding objective of dealing with the case more quickly or considering it better in the most effective and just way.

3. The refusal was just in all the circumstances. The appeal concerned a narrow and straightforward question: whether the Employment Tribunal had considered the single issue for which permission to appeal had been granted. The appellant knew her own case, and the presence of counsel was unlikely to alter the Employment Appeal Tribunal’s assessment.

4. The tribunal had taken reasonable steps to assist the appellant. It permitted a short adjournment so that she could familiarise herself with papers supplied at the hearing, imposed no onerous procedural requirements, and considered that she had effectively made the points she wished to make. The previous adjournments had caused delay and wasted costs, while the respondents were blameless for those difficulties. The need for finality in litigation was a legitimate consideration.

5. Under Article 6.1 of the European Convention on Human Rights, effective access depends on whether the litigant could present the case properly and satisfactorily. Airey v Ireland [1979] 2 EHRR 305 and X v United Kingdom [1984] 6 EHRR 136 indicated that a breach arises only in exceptional circumstances, such as where the withholding of legal aid makes assertion of a civil claim practically impossible or produces obvious unfairness. McVicar v United Kingdom [2002] 25 EHRR 22 confirmed that the assessment depends on the specific circumstances.

6. The appellant’s dyslexia and asserted difficulty in assimilating the case did not establish a breach. The Court of Appeal considered that she was capable of presenting her case, and no denial of a fair trial was demonstrable. The order was therefore: application refused, with a transcript supplied to the appellant at public expense.

• Court of Appeal (Civil Division): application for permission to appeal refused. The Court concluded that refusal of a further adjournment disclosed no improper exercise of discretion or breach of Article 6.1.
• Employment Appeal Tribunal: by order dated 17 September 2003, dismissed the appeal from the Employment Tribunal’s decision after refusing a further adjournment at the substantive hearing.
• Employment Tribunal: decision promulgated 18 October 2001. Some claims were held out of time and the remaining complaints were dismissed on the merits.