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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bibby v Hurel- Dubois UK Ltd [2001] EWCA Civ 1620 (25 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1620.html Cite as: [2001] EWCA Civ 1620

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Sir Christopher Bellamy QC)

		Royal Courts of Justice Strand London WC2 Thursday, 25th October 2001

Thursday, 25th October 2001

1. LORD JUSTICE PETER GIBSON: Edwin Bibby applies for permission to appeal from the order made on 21st May 2001 by the EAT at the ex parte preliminary hearing of his appeal from a decision promulgated on 31st October 2000 of Mr Creed, the Chairman of an Employment Tribunal in sitting in Manchester. By that decision Mr Creed struck out Mr Bibby's originating application made against his employer, Hurel-Dubois UK Limited, on the ground that Mr Bibby had conducted himself vexatiously in the proceedings.
2. Mr Bibby was employed by the employer from 19th November 1990 to 19th November 1999 as a labourer, as he himself stated in his IT1. He was absent from work from October 1998 through illness. He applied for ill-health early retirement under the employer's early retirement scheme. He provided medical reports from a specialist and on 19th November 1999 the trustees of the employer's pension scheme wrote to Mr Bibby stating that they had decided to grant him full ill-health early retirement. His employment ceased that day.
3. However Mr Bibby on 18th January 2000 applied to the Tribunal claiming unfair dismissal. In his IT1 he alleges that during the summer and autumn of 1998 he had been subjected to bullying by certain managers at Hurel-Dubois and that he had had a breakdown. He said that he put in a signing-off note in November 1999 and was promptly retired. He said:

"I claim unfair dismissal (through retirement) I blame the firm 100% for my illness (Oct 98)."

4. Mr Bibby in correspondence with the Tribunal added to his IT1 by making a number of further allegations, such as the illegal use by the employer of a certain dangerous paint and that an officer of the company had sold to another officer smuggled beer. The employer by its IT3 opposed the application. It said that in November 1999 Mr Bibby's specialist's report was that his condition was permanent and he would not be able to work in the future, and that when in his application for ill-health early retirement was accepted he signed the appropriate forms and accepted a lump sum payment. The employer claimed that Mr Bibby's employment was terminated by mutual consent and submitted that Mr Bibby's application was frivolous and vexatious. It said that Mr Bibby had bombarded it on a daily basis with letters and e-mails of an abusive and threatening nature and had made threats to various employees. It referred to the police being involved and to spurious county court claims by Mr Bibby which had been struck out. The employer requested a pre-hearing review.
5. A hearing was ordered by the Tribunal to deal with the employer's claim that the proceedings were vexatious and also with another matter which arose in this way. On 21st February 2000 Mr Bibby wrote to the Tribunal alleging that the pension trustees had been defrauded in that a note from his doctor had been hidden from the trustees by Dr Durkin, the medical officer of the employer, and Mr Greenhalgh, the AEEU shop convenor. The employer responded denying these allegations. It said that the trustees were aware of that doctor's note. A Tribunal Chairman other than Mr Creed decided that in view of the allegations against Dr Durkin and Mr Greenhalgh there should be a hearing to consider whether those two individuals should be joined as respondents additional to the employer.
6. A hearing was fixed for 28th July 2000. Mr Bibby applied for a postponement on the ground that he had a Crown Court appeal pending. A Tribunal Chairman other than Mr Creed rejected that application, noting that the Crown Court appeal was to be heard in the week commencing 17th July. The employer through its legal adviser, Sandra Howard, applied for an adjournment on the ground that a key witness was not available that day. On 17th July Mr Creed granted that application and fixed a new hearing date for 31st August. That produced an immediate furious reaction from Mr Bibby. On 18th July he wrote to the Tribunal saying that he had changed the hearing date for the Crown Court to 1st September because of the refusal of his request for an adjournment and that because of that and the grant of an adjournment to Miss Howard, he requested another date as 31st August was not acceptable and he would not attend on that date. He suggested in the alternative that the hearing date of 28th July should be restored. He concluded:

"If you find any of my requests impossible, then I suggest you cancel the whole thing, as the LIES of Sandra Howard are getting impossible to put up with any longer."

7. The Chairman responded by letter dated 26th July refusing the postponement of the hearing listed for 31st August. He said that since the Crown Court case was to be heard on 1st September there was no reason why Mr Bibby could not attend the Tribunal for a single day on 31st August. The Chairman noted Mr Bibby's comments regarding Miss Howard and informed Mr Bibby that he must be more temperate in his language. He warned that if Mr Bibby persisted in abuse of another party or its representative in correspondence with the Tribunal he was at risk of having his application struck out on the grounds that the manner in which he was conducting the proceedings was scandalous or vexatious. That was a reference to the power conferred on the Tribunal by rule 13(2)(e) of the Employment Tribunal Rules 1993.
8. Mr Bibby replied with another heated letter to the Tribunal on 28th July saying:

"I knew a postponement would be refused, the obvious bias treatment has been obvious from the start. I HAVE ALREADY INFORMED YOU THAT I WILL NOT ATTEND ON 31/8/00."

9. He continued a little later:

"I have no confidence in a fair hearing. I refuse to attend on 31/8/00, for the reasons given in my last letter, dated 18/7/00.

If I am struck out for this, then so be it. ...

I will fight until the day I die, regardless of this farce of a Tribunal."

10. At the hearing on 31st August before Mr Creed Mr Bibby did not attend. Miss Howard represented the employer. Dr Durkin and Mr Greenhalgh were also represented. By his decision Mr Creed held that it was not appropriate to join either Dr Durkin or Mr Greenhalgh. He further held that Mr Bibby had acted vexatiously in the conduct of the proceedings and had been abusive and unreasonable in his dealings with the employer's employees, its officers and representatives and officers of the AEEU and its solicitors. He therefore struck out the proceedings.
11. On 14th September, before Mr Creed's decision had been promulgated, Mr Bibby wrote to the Tribunal asking what had happened and saying that he had informed the Tribunal that he was unable to attend on 31st August "due to a conference with a barrister". But he had not informed the Tribunal of that conference, as Mr Creed pointed out in a letter dated 13th September.
12. On receipt of Mr Creed's decision Mr Bibby promptly applied for a review on the ground that he had not been present at the hearing. By a decision promulgated on 28th September the application for a review was refused by Mr Creed on the ground that Mr Bibby had deliberately chosen not to attend the hearing on 31st August.
13. Mr Bibby appealed to the EAT. He alleged that, contrary to Article 6 of the European Convention on Human Rights, he had not been allowed a fair hearing. He said that Mr Creed was biased. He swore an affidavit in which he repeated his claims of Mr Creed's bias. In accordance with the EAT's normal practice when a litigant makes a complaint about the behaviour of a tribunal, the Chairman was invited to comment. Mr Creed duly supplied his comments on Mr Bibby's affidavit paragraph by paragraph, refuting the allegations of bias.
14. At the EAT Mr Bibby did not appear, but the EAT gave a fully reasoned judgment dealing with the points taken by Mr Bibby. It rejected the accusation of bias. It considered a point taken by Mr Bibby on a letter dated 20th July 2000 which was sent by Miss Howard to the Regional Chairman of Employment Tribunals but which was not revealed to Mr Bibby until after the hearing on 31st August. In that letter Miss Howard had complained of what she called Mr Bibby's abusive and threatening conduct towards her and expressed concern about her own safety. She asked that the letter not be copied to Mr Bibby "for obvious reasons". The EAT said that there was no evidence that Mr Creed decided to strike out the proceedings for any reason other than those which were set out in the decision and which related to matters of which Mr Creed was informed in the course of the hearing. The EAT therefore found no error of law in relation to that letter and no evidence of bias. It therefore found no breach of Article 6.
15. For this application Mr Bibby has sworn a further affidavit saying that he did not threaten Miss Howard and that false evidence had been given to strike out his claim. In his Appellant's Notice he lists five grounds of appeal, most of which repeat earlier complaints made:

(1) breach of Article 6;

(2) bias by the Chairman;

(3) favouritism to Miss Howard;

(4) false claims by the Chairman in regard to the application made; (5) discrimination under the Disability Discrimination Act 1995.

16. He appeared in person to support this application, but I am afraid that he became very heated in his address to me and at the conclusion stormed out of this court.
17. I shall consider the grounds of appeal in turn.

(1) The breach of Article 6 is said to be the absence of a fair hearing. Insofar as this is a complaint that the hearing on 31st August took place in his absence, as I have already indicated by reciting the history of what occurred, Mr Bibby's non-attendance was due to his refusal to attend on a day when he was not engaged in the Crown Court. I do not doubt his subsequent assertion that he had a conference with counsel that day, but that fact does not reveal that there was any error in the refusal by Mr Creed of an adjournment. Not only was the Tribunal not informed by Mr Bibby of the conference but Mr Bibby has not shown that the conference was arranged before he indicated his refusal. He told me that the conference had been arranged a month before the Crown Court appeal. If so, he must have arranged that conference after he had indicated he would not attend the hearing. Further, he has not explained why that conference could not have been rearranged to enable him to attend the hearing.

18. Insofar as the Article 6 complaint is based on grounds (2) to (4) I will consider those grounds first. Grounds (2) and (3) can be taken together. The bias alleged against Mr Creed appears to be based primarily on the refusal of Mr Bibby's two applications for adjournments and the allowance of Miss Howard's application for an adjournment. Mr Creed did not decide Mr Bibby's first application. In any event each application had to be considered judicially. If the reasons for seeking the adjournment were inadequate then it was right to refuse the adjournment. In my judgment the applications by Mr Bibby did not disclose adequate grounds for an adjournment. If an application for an adjournment was justified then it is plain that the adjournment should be allowed. In my judgment Miss Howard did produce a cogent reason for an adjournment. There is no bias or favouritism which can be inferred from the way the adjournments were dealt with.
19. Mr Bibby again complains about the letter sent by Miss Howard to the Regional Chairman. That was an ill-advised letter in view of its request that it not be disclosed to Mr Bibby. But there is no evidence that Mr Creed, before giving his decision, saw that letter. That letter was marked "for the attention of the Regional Chairman only". Further, as the EAT pointed out, the reasons for Mr Creed's decision were based on the matters of which he was informed at the hearing which Mr Bibby chose not to attend. He says that the reasons mirror the reasons in the letter and that it should be inferred that Mr Creed saw the letter. But it is plain that if Miss Howard attended the hearing to complain about the vexatious conduct of Mr Bibby, then she would inform the Tribunal at the hearing of the complaints on which she was relying.
20. Mr Bibby also complains that Mr Creed in his decision refers to Mr Bibby's conviction for harassment. Again that was something mentioned at the hearing. Mr Creed knew that Mr Bibby had a Crown Court appeal because Mr Bibby had told him of that in the correspondence. In any event in these civil proceedings in which complaint is made of Mr Bibby's harassing conduct, I do not see why mention cannot properly be made of the fact of a conviction for harassment.
21. The fourth ground of appeal relates to the fact that Mr Creed through inadvertence inaccurately refers in his decision to Mr Bibby as having made an application to join Dr Durkin and Mr Greenhalgh whereas the position was that another Chairman had directed that the joinder be considered in view of Mr Bibby's accusations in his letter of 21st February 2000 against those individuals. But nothing turns on that minor inaccuracy. Mr Bibby did not want them joined and they were not joined. This inaccuracy, which Mr Creed acknowledged in his comments on Mr Bibby's first affidavit, is irrelevant and certainly does not show bias. I therefore see nothing in any of these complaints and the Article 6 complaint is unsubstantiated.
22. The fifth ground is that there was discrimination under the Disability Discrimination Act. There is no reference to the Act in Mr Bibby's IT1 or in his subsequent correspondence with the Tribunal. It is far too late to try to make a claim under the Act, and in any event it does not go to the point on which Mr Creed struck out the originating application. This is an irrelevant matter.
23. Mr Bibby plainly feels strongly that a serious injustice has been done to him, but to the objective observer there is no real prospect of success on any of the grounds on which he would appeal against the EAT's decision and no other compelling reason has been put forward why this appeal should be heard. I must therefore dismiss this application.
Order: Application refused.