The Court of Appeal has, yesterday, handed down its decision in Bennett v London Borough of Southwark. Its flavour can best be gleaned from the opening words of Ward LJ, namely "This case fills me with despair" or the conclusion of Sedley LJ, namely the case is "both inexorable and deeply depressing".
Mrs Bennett, who is black, brought a race claim against Southwark in 1994. It was listed for 10 days in 1996, and then for a further 8 days in 1997. At the start of the resumed hearing, Mrs Bennett's lay representative applied for an ajournment on the grounds of Mrs Bennett's ill-health. The tribunal refused, on the grounds that the case had been very lengthy, she had already given evidence and her representative was capable of cross-examining in her absence.
The representative repeated the adjournment application and, when it was refused again, told the tribunal "If I was a white barrister I would not be treated in this way" and "If I were an Oxford-educated white barrister with a plummy voice I would not be put in this position".
The tribunal decided to recuse itself, without giving the parties the opportunity to comment. The case was subsequently struck out on the grounds of scandalous conduct of proceedings.
Whilst the list of issues was quite lengthy, the pertinent ones are:
1. ought the tribunal have recused itself?
2. is the Applicant to be fixed with her representative's conduct?
3. was the (subsequent) tribunal right to strike out the claim for the scandalous conduct of proceedings?
1. the tribunal should not have recused itself. Its first course of conduct should have been to attempt to defuse the situation, perhaps by a short adjournment or simply by ignoring the allegation. At the very minimum, the tribunal should point out the consequences of the statement to the representative (i.e. a possible recusal) and invite him to withdraw it. Even if the statement is not withdrawn, a tribunal should be very cautious about adopting a course which involves wastage of significant costs and time. As Ward LJ put it:
"In getting on their high horse, [the tribunal] fell off the judgment seat."
2. an Applicant is not necessarily fixed with her representative's conduct. Whilst there is a presumption of agency, "a principal can always prove a want of actual authority, and I do not believe that the advocate's ostensible or implied authority, large as it is, extends (at least in the absence of ratification) to abusing the judicial process."
3. the subsequent tribunal was wrong to strike out the claim for scandalous conduct of proceedings. 'Scandalous' means, in this context, "the misuse of the privilege of legal process in order to vilify others [or] giving gratuitous insult to the court". Further, when deciding whether to strike out on this ground, one must look at the conduct of the entire proceedings, not just an isolated two sentences.
Accordingly, despite it being "a deeply unsatisfactory result", the Court of Appeal remitted the entire claim for a fresh hearing before a new tribunal.
To see the full judgment, click here.