Deman v The Commission for Equality and Human Rights & Ors

In race discrimination proceedings, the obligation to sit with lay assessors depends on whether they can assist with the issues to be determined. It does not define the constitution or jurisdiction of the court. A judge may determine a strike-out application without assessors where the issue is whether the pleadings disclose a case capable of trial and no evaluation of asserted facts is required.

A difference in status and treatment shows only a possibility of discrimination. Additional material is required, although it need not be substantial. Bare assertions and unsupported allegations may be struck out where they cannot identify circumstances suggesting that race influenced the impugned decision.

Mr Deman brought proceedings against the Commission for Racial Equality, now the Commission for Equality and Human Rights, and others. He alleged racial discrimination and victimisation arising principally from refusals to provide or extend assistance and representation for claims concerning academic appointments.

The Central London County Court held that the judge was not required to sit with assessors on the strike-out application. It then held that the claim was untriable and struck it out. The appeals concerned the assessor requirement and whether the pleaded allegations disclosed a triable discrimination claim.

1. Assessors. Section 67(4) of the Race Relations Act 1976 required a judge to be assisted by two assessors where they could contribute their special knowledge and experience of race-relations problems. The provision regulated the manner of adjudication rather than constituting the court or defining its jurisdiction. Consent to proceed without assessors could be given by silence, but express non-consent did not require their participation where they could make no relevant contribution.
2. The strike-out application raised the anterior question whether the claim could fairly be tried in the state of the pleadings. That was a judicial question involving no evaluation of asserted facts. Assessors might have assisted on a summary-judgment application involving assumed facts, but the judge was entitled to discharge them for the strike-out application. The court noted that section 114(7) of the Equality Act 2010 had since made the position plain.
3. Pleading discrimination. The principle in Madarassy v Nomura International Ltd was accepted: a difference in status and a difference in treatment merely indicate a possibility of discrimination. Some additional material is required before a tribunal could conclude that unlawful discrimination had occurred, although the necessary “more” need not be substantial. It may arise from an evasive or untruthful response to a statutory questionnaire or from the context of the impugned act.
4. The Commission’s statutory function under section 66 of the Race Relations Act 1976 involved discretion to select applications for assistance and the form of assistance, subject to the prohibition on racial discrimination. The claim therefore needed to identify with some particularity material suggesting that race had influenced the refusals. The pleaded comparison, unsupported assertions of institutional racism and unanalysed statistics did not do so.
5. The case was one of the plainest and most obvious cases in which strike-out was justified, notwithstanding the caution expressed in Anyanwu v South Bank Student Union. Both appeals were dismissed.

• Court of Appeal (Civil Division): The consolidated appeals against two decisions of the Central London County Court were dismissed. The court upheld the ruling that assessors were not required for the strike-out application and upheld the striking out of the claim as untriable.
• Central London County Court: HH Judge Collins CBE held that he was not required to sit with assessors and struck out the claim. Permission to appeal the first decision was granted by him; permission to appeal the second was granted by Underhill J, with transfer to the Court of Appeal.