Chambers-Mills v Allied Bakeries

An appeal is not a rehearing. Permission may nevertheless be appropriate where there is a real prospect that the lower tribunal’s decision was wrong or unjust because of a serious procedural irregularity. In a strike-out application based on unreasonable conduct, the relevant conditions are deliberate and persistent disregard of procedural requirements or conduct making a fair trial impossible. Procedural fairness is especially important where a litigant in person is confronted without adequate notice by a strike-out application and cannot prepare evidence or obtain legal advice. A tribunal may properly require joint expert evidence where the claimant’s medical condition is in issue and that evidence is necessary for a fair adjudication.

The appellant’s complaints under the Disability Discrimination Act 1995 had been struck out by the Employment Tribunal because of alleged deliberate and persistent failure to comply with orders concerning a jointly instructed psychiatric expert. The Employment Appeal Tribunal dismissed her appeal on 8 December 2008. Rimer J refused permission to appeal on paper on 23 June 2009.

On an oral renewal before the Court of Appeal, the appellant challenged the factual findings, the use of the unless order, the refusal of an adjournment and the decision to proceed without her having adequate opportunity to meet the strike-out application. The central issue was whether there was a real prospect that the Employment Tribunal’s decision was wrong or unjust because of serious procedural irregularity.

1. Permission granted in part. Permission to appeal was granted on the grounds concerning the alleged removal, or the appellant’s reasonable belief in the removal, of the unless aspect of the Employment Tribunal’s order, the absence of adequate notice of the strike-out application, the lack of opportunity to prepare evidence and obtain legal advice, and the resulting challenge to the factual findings.
2. An appeal is not a rehearing. It succeeds only where the lower court or tribunal was wrong, or where its decision was unjust because of a serious procedural or other irregularity. Although factual findings of this kind would ordinarily be unchallengeable, exceptional circumstances justified allowing them to be put in issue at the appeal stage.
3. The Employment Tribunal had applied the correct strike-out test stated by Sedley LJ in Blockbuster Entertainment Ltd v James [2006] IRLR 630. The two cardinal conditions were deliberate and persistent disregard of required procedural steps, or conduct making a fair trial impossible.
4. The 2 August 2007 letter from the Tribunal Service was a material factor. It indicated that the unless aspect of the 15 June order had been removed, or reasonably appeared to the appellant to have been removed. The Employment Tribunal’s failure to address that matter, together with the possibility that the appellant was taken by surprise by the strike-out application on 26 September 2007, created a real prospect of procedural unfairness.
5. The appellant had not been given proper time to prepare a witness statement or documentary evidence, obtain legal advice, or meet the factual case advanced against her. Those matters provided a real prospect that the decision was unjust because of serious procedural irregularity.
6. Permission was refused on the grounds that the Employment Tribunal had failed to take account of the appellant’s psychological condition and that it should have proceeded without jointly instructed medical expert evidence. The first ground was unarguable because the tribunal was plainly aware of her condition. The second was a fundamental misconception: both the tribunal and the respondent were entitled to the benefit of independent joint expert evidence where the respondent disputed disability and the medical condition was in issue.
7. Order: application granted, subject to refusal of permission on those two grounds.

• Court of Appeal (Civil Division) — On 26 November 2009, permission to appeal was granted on specified procedural-fairness grounds, but refused on the grounds concerning awareness of the appellant’s psychological condition and proceeding without joint expert evidence.
• Employment Appeal Tribunal — On 8 December 2008, the EAT dismissed the appeal from the Employment Tribunal’s strike-out decision.
• Employment Tribunal — On 3 October 2007, the ET struck out the appellant’s complaints under the Disability Discrimination Act 1995, while continuing to hear her other complaints.