Garg v Wolverhampton Health Authority & Ors

Permission to appeal requires a real prospect of success or another compelling reason for the appeal to proceed. Courts and tribunals control hearing time and case management. They may refuse an adjournment where related proceedings are stale or concluded and the employment case can proceed independently. Witness summonses may be refused where the proposed evidence concerns an issue already finally determined or is irrelevant to the live claim. The absence of legal representation for a capable litigant in employment proceedings does not, without more, require state-provided representation or establish a human-rights breach.

Dr Garg brought Employment Tribunal claims involving racial discrimination under the Race Relations Act 1976, unfair dismissal, redundancy and deductions from pay. Earlier proceedings determined that his employment ended on 31 December 1992. An Employment Tribunal chairman later made case-management directions concerning the live discrimination issues, an adjournment and witness summonses. The Employment Appeal Tribunal dismissed Dr Garg’s interlocutory appeal on 13 February 2003.

Dr Garg sought permission to appeal, challenging the hearing time, lack of legal representation, refusal of an adjournment and witness summonses, and the treatment of his employment-status and wage claims. The central question was whether any proposed ground had a real prospect of success or whether another compelling reason justified an appeal.

Application for permission to appeal refused.

1. The relevant question was whether Dr Garg had a real prospect of succeeding on an appeal from the EAT’s order concerning the limited case-management decisions made on 2 October 2001, or whether any other compelling reason justified allowing the appeal to proceed. The wider merits of the racial-discrimination complaints had not yet been determined and were outside this application.
2. The courts and tribunals control proceedings before them, including the time allocated to a hearing. A litigant cannot dictate the length of a hearing. The one-hour listing accorded with EAT practice and disclosed no procedural injustice.
3. The court rejected the contention that the absence of counsel breached the Human Rights Act 1998. Although the European Court of Human Rights requires state-provided legal representation in criminal cases and certain limited civil cases of particular seriousness, there was no such requirement in this employment case. Dr Garg was capable of presenting his own case.
4. The prior decisions of the ET, EAT and Sedley LJ finally determined that Dr Garg’s employment ended on 31 December 1992. That issue could not be reopened. Claims for wages after that date therefore fell away. The EAT had not, however, struck out the separate contention concerning deductions before that date.
5. The refusal to adjourn the ET proceedings pending the High Court actions involved no error in the exercise of case-management discretion. One action was stale and the other had been struck out; in any event, the ET proceedings could be heard without awaiting them.
6. The refusal of two witness summonses was plainly justified because the proposed evidence concerned the irrelevant and finally determined termination-date issue rather than racial discrimination. A further application could be made if either witness had relevant evidence on discrimination.

No ground had a real prospect of success and no other compelling reason had been shown. The application was refused.

1. Court of Appeal (Civil Division): application for permission to appeal refused, [2004] EWCA Civ 808.
2. Employment Appeal Tribunal: interlocutory appeal against the Employment Tribunal chairman’s case-management decisions dismissed on 13 February 2003.
3. Employment Tribunal: case-management directions made on 2 October 2001.