Appeal No. PA/0496/03 SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 June 2003

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

MS E MOHTASHAM	APPELLANT

(1) PROFESSOR JOHN SIMPSON	RESPONDENTS
(2) UNIVERSITY OF SOUTHAMPTON

Transcript of Proceedings

JUDGMENT

RULE 3 (10) APPEAL

Revised

	APPEARANCES

For the Appellant	MS E MOHTASHAM
(the Appellant in Person)	

HIS HONOUR JUDGE PETER CLARK

1	On 20 February 2003 the Appellant, Ms Mohtasham, entered a Notice of Appeal against two Employment Tribunal’s decisions.  The first decision, which was promulgated with Extended Reasons on 23 December 2002 is a decision of a full Tribunal sitting at Southampton on 25 and 26 November 2002, striking out the Appellant’s Originating Applications, then totalling some 16 in all, and further ordering her to pay costs in the sum of £10,000 to the Respondents (1) Professor John Simpson and (2) the University of Southampton.

2	Secondly, an appeal against a decision of the Chairman, Mr C E H Twiss sitting alone refusing an application by the Appellant for a review of the substantive decision dated 23 December, by a review decision dated 22 January 2003 under Rule 13 (5) of the Employment Tribunal Rules of Procedure 2001 on the ground that the application had no reasonable chance of success.  That decision was promulgated with Extended Reasons running to four paragraphs in all.

3	The appeal against the substantive decision was out of time.  Application was made by the Appellant for an extension of time which was opposed by the Respondents.  Finally, on 3 June 2003 the Registrar refused to extend time.  Against that refusal the Appellant has appealed.  That appeal is not now before me.

4	As to the appeal against the review decision which was in time, by letter dated 16 April 2003 the Registrar concluded under Rule 3 (7) of the Employment Appeal Tribunal Rules 2001, that this part of the appeal raised no question of law such as to give the Employment Appeal Tribunal jurisdiction to entertain this part of the appeal under section 21 of the Employment Tribunals Act 1996.
5	Dissatisfied with that direction that no further action be taken on this part in this part of the appeal, the matter has been referred to me under Rule 3 (10) and I have heard submissions by Ms Mohtasham on this part of the case having earlier read through a bundle of documents running to some 293 pages.

6	The question for me is whether the appeal raises any question or questions of law in relation to the Chairman’s review decision.

7	The first point taken by Ms Mohtasham is that any application for a review, this one being made under Rule 13 (1) (e) of the Employment Tribunal Rules of Procedure 2001, should be considered carefully.  She points out that in paragraph 1 of his review decision reasons the Chairman says:

1	“I treat the Applicant’s letter of 11 December 2002 as an application for review.”

8	She points out that the decision with Extended Reasons for the strike out order and costs order was not promulgated until 23 December, that is, after her letter of 11 December.  That is correct.  However, Ms Mohtasham tells me that at the end of the hearing on 26 November the Chairman delivered the Tribunal’s decision and some reasons so that she was aware of the result of the case before writing on 11 December.

9	More particularly, her formal application for review was contained in a letter dated 28 December 2002 which is before me.  At paragraph 4 of his Extended Reasons the Chairman states:

4	“I have also considered the Applicant’s long letters of 21 and 28 December 2002.  It discloses nothing that was not, or could not have been, raised at the hearing.  The decision was made having regard to the requirements of the Human Rights Act.”

10	In that brief sentence the Chairman conveys to the parties and to me that having read the letter of 28 December he can see no basis there contained for a review of the substantive decision.  I have also read that letter and take a similar view.  Effectively, the Appellant is there seeking to raise either arguments again which were raised at the substantive hearing or, as she tells me, points which she was not permitted to raise at that hearing.

11	If her complaint is that she was not given an adequate opportunity to present her case at the substantive hearing then that potentially is a matter for appeal against the substantive decision.  It is not, in my judgment, a matter for review.

12	The Appellant also submits that it was not open to the Chairman to dismiss her application for a review without it being considered by the two lay members of the Tribunal who sat with him at the substantive hearing.  Rule 13 (5) of the Tribunal Rules makes clear:

13	(5)	“An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success.”

13	I am quite satisfied that the Chairman who sat on the substantive hearing, Mr Twiss, was entitled under Rule 13 (5) to reject the application for a review if in his opinion it had no reasonable prospect of success.

14	Ms Mohtasham also refers me to Rule 12 (3) which provides that

12	(3)	“The tribunal shall give reasons for its decision in a document signed by the chairman.”

That has been done in relation to the review decision.  He has given a decision with Extended Reasons which he has signed.
15	In these circumstances I can see no basis within the current appeal for concluding that it raises any question of law in relation to the review decision.  Reference has been made during the course of submissions to the Human Rights Act 1998.

16	First, Ms Mohtasham submitted that under the Civil Procedure Rules 1998, Rule 7.11 (1) (a), any claim based on section 7 (1) (a) of the Human Rights Act 1998 brought against an Employment Tribunal must be heard in the High Court.  That is correct.  It does not, it seems to me, prevent an Appellant from raising Human Rights arguments where appropriate in appeal proceedings to the Employment Appeal Tribunal.  I do not consider that any potential claim in the High Court against the Employment Tribunal cuts across the task which I have to discharge today.

17	Second, she has referred to the Civil Procedure Rules 1998, 33.9 (1) (b) in relation to infringement of Human Rights, whereby the Appeal Court hearing such a case and having found an infringement may then rehear the case.  That may well be so, but for present purposes I am not satisfied that this part of the appeal against the Chairman’s review decision raises any question of law which would give the Employment Appeal Tribunal jurisdiction to entertain the appeal and consequently on this part of the appeal no question of a finding of an infringement of the Appellant’s Human Rights arises.

18	In these circumstances I confirm the Order made by the Registrar that there should be no further action taken on this appeal.  The application under Rule 3 (10) is dismissed.

19	Finally Ms Mohtasham has indicated that she seeks permission to appeal to the Court of Appeal in the event that this application is unsuccessful.   I have considered that application and reject it on the basis that this part of the appeal discloses no question of law giving the Appeal Tribunal jurisdiction to entertain it.