Deman v The Commission for Equality and Human Rights & Ors

This Court of Appeal considered two consolidated appeals arising from a claim by Mr Deman for racial discrimination and victimisation against the Commission for Racial Equality (now the Equality and Human Rights Commission) and others. The court held that section 67(4) of the Race Relations Act 1976 required a judge to sit with lay assessors only where those assessors could usefully assist in evaluating matters connected with relations between racial groups; the provision did not make the judges decision void where assessors were dispensed with after the judge concluded they could not contribute. The court further held that the claimants pleaded case was so lacking in particularity and evidential foundation (including on the allegation of institutional racism) that it was properly struck out as untriable. The court dismissed the appeals.

This appeal concerned consolidated challenges to two decisions by HH Judge Collins in the Central London County Court: (1) that he was not required to sit with assessors when determining an application to strike out the claim, and (2) that the claimants discrimination claim was untriable and should be struck out. The underlying claim alleged that the Commission repeatedly failed to support the claimants discrimination litigation against academic institutions. The claimant is a persistent litigant and had previously been subject to restrictions in Attorney-General v Deman [2006] UKEAT 0113/06/RN.

The court framed and resolved two principal issues:

• Whether s.67(4) of the Race Relations Act 1976 made a judges adjudication invalid unless the judge sat with two lay assessors when one party did not consent to their absence.
• Whether, on the pleadings as they stood, the claimant had alleged facts with sufficient particularity or supporting material for the claim to be triable.

On the first issue the court concluded that s.67(4) is properly read as requiring the judge to be "assisted by" assessors where they can make a real contribution by reason of their special knowledge and experience of race relations; it is a rule as to how adjudication should be conducted rather than a constitutive requirement of jurisdiction. Where assessors could not usefully assist, the judge was not required to sit with them. The court noted that the Equality Act 2010, s.114(7), subsequently clarifies the intended meaning.

On the second issue the court reviewed the claimants pleadings and the statutory framework governing the Commissions discretion to provide assistance (s.66 of the 1976 Act). Applying authority including Madarassy v Nomura and the established principle that bare differences of treatment and status do not without more establish discrimination, the court found the pleadings to be largely bare assertions, lacking the "more" required to make out an arguable discrimination claim. The allegation of institutional racism was unsupported by comparative rates or other particulars that would require inquiry. The judge was entitled to strike out the claim as untriable; indeed, refusing to do so might have been an error.

The court therefore dismissed the appeals and affirmed the judges discharge of the assessors and striking out of the claim.

This appellate court dismissed the consolidated appeals. It held that s.67(4) of the Race Relations Act 1976 requires a judge to sit with lay assessors only where they could usefully assist in relation to race relations matters; it is not a constitutive jurisdictional precondition. The judge was entitled to discharge assessors who could not contribute to the strikeout application. On the merits the claimants pleadings were insufficiently particular and unsupported, including the allegation of institutional racism, and the claim was properly struck out as untriable.

Consolidated appeals from two decisions of HH Judge Collins CBE in the Central London County Court (WO014375, CL209366 & CL352464). The judge gave permission to appeal his decision on assessors; Underhill J granted permission to appeal the strikeout decision and directed transfer from the High Court to the Court of Appeal. Final determination in the Court of Appeal: [2010] EWCA Civ 1279.