In 2011 Mr John Healey, described as “an experienced litigator”, brought an Employment Tribunal claim against Wincanton Group. The case came before Employment Judge Robinson sitting in Liverpool, was duly heard, and the tribunal reserved its decision. So far, so good.
Unfortunately, Employment Judge Robinson’s memory failed him with disastrous consequences for the eventual judgment, which went against Mr Healey. It transpired, as Judge Robinson did recall before giving the judgment, that previously he had acted for Mr Healey in his capacity as a partner at Jackson & Canter. Furthermore, in 1998, he had dismissed a claim brought before him by Mr Healey – a decision overturned by the Employment Appeal Tribunal on the basis of the appearance of bias. The Judge should not have heard the case or continued with it after actual knowledge.
Apparently Mr Healey’s memory was better than that of the judge (who in fairness cannot perhaps be expected to remember every client and every party before him during his career), but he was unaware that he could have applied for the judge to recuse himself, and so kept his silence. When he lost, however, he appealed on the grounds of bias. It is all the more remarkable that, although Judge Robinson might not remember all the cases he had dealt with, one would have thought that he would be very likely to have remembered one which was the subject of a successful appeal on the ground of bias. However that was not the case, or at least not until well into the case, and history therefore repeated itself.
Unsurprisingly, His Honour Judge McMullen QC in the Employment Appeal Tribunal upheld his appeal. Given the history, he concluded that any observer would perceive a possibility of bias in the circumstances:
This was a case where the Judge had now decided against his former client on his claim, the former client had taken the matter to the EAT not on a technical legal issue of construction but on a direct criticism of bias as it was put (probably apparent bias, really) by Mr Healey against Judge Robinson, and therefore this is a stand-out issue. Thirteen years in the ordinary solicitor/client relationship may cause unfairness to disappear, but in the circumstances of this case we hold that that passage of time was not sufficient. Indeed, we hold that Judge Robinson should not at any time hear a case in which Mr Healey was a party in the light of their history.
The inevitable result was that the parties were back to square one. Not only Mr Healey but those he represented and another claimant represented by solicitors must face an entirely new hearing before a differently constituted tribunal. In addition there is a potential cost for the claimants, having won part of the claims in the initial hearing, and having that partial win cancelled so that they must start again from scratch.
Unfortunately this is another example of unwieldy processes resulting in significant expenses and delay within what is supposed to be a relatively informal forum for the resolution of employment disputes.