B2/2001/0304
Neutral Citation Number: [2002] EWCA Civ 111
IN THE SUPREME COURT OF JUDICATURE                                  
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE CRAWFORD LINDSAY)
                                  Royal Courts of Justice
                                  Strand
                                  London WC2
 
                                  Friday, 25th January 2002
B e f o r e :

LORD JUSTICE SCHIEMANN

LORD JUSTICE CHADWICK

-and-

SIR CHRISTOPHER STAUGHTON

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NATASHA SIVANANDAN
Appellant

- v -

EXECUTIVE COMMITTEE OF HACKNEY ACTION FOR RACIAL EQUALITY
 Respondent
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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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MR S SHANKS appeared on a pro bono basis on behalf of the Appellant
MISS K GALLAFENT (instructed by Akainyah & Co, London N4 2NG) appeared on behalf of the Respondent
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J U D G M E N T
Friday, 25th January 2002
1.	LORD JUSTICE SCHIEMANN: This is an appeal from a decision of His Honour Judge Crawford Lindsay QC, on a preliminary issue which has been formulated by a district judge. The appellant was, and perhaps still is, a member of the Hackney Action for Racial Equality, which is an entity which has been referred to throughout by the acronym HARE. She was excluded in practice from all the rights which a member would have. She claims that this exclusion was motivated by racial and sexual discrimination. There is a case to be made that this exclusion was in breach of HARE's constitution. Indeed as much is all but admitted in paragraph 13.4 of the defence. However, that issue is not before us.
2.	The practical result of the judge's decision is that her complaint under the Race Relations Act can go forward but that her complaint under the Sexual Discrimination Act has come to an end.
3.	Procedurally, I am far from satisfied that the case has been dealt with in a way most conducive to achieving the just result in the minimum amount of time. I allocate no blame for this state of affairs. The appellant has until today always acted for herself and that may have contributed to that situation. HARE, for its part, was represented by Miss Gallafent before the circuit judge and before us, and we are grateful to her for her clear submissions. She was, however, not responsible for the way the preliminary issues were formulated in the district judge's order. We understand, but it does not matter for present purposes, that the decision to have preliminary issues in that form in the present case was reached at the instance of HARE.
4.	The appellant, in her particulars of claim, said this in paragraph 11, having alleged breaches of sections 1, 2 and 20 of the Race Relations Act; and 1, 4 and 29 of the 1975 Sex Discrimination Act:
“The services which I claim have been denied to me following my complaints are: (a) the appropriate grievance and/or complaints and/or other service which should have been followed in order to deal with the complaints made against myself, which were sent to me in January 1999, and (b) the denial of membership of HARE, which is an organisation open to members of the public who live or work in Hackney.”
5.	Preliminary issues were formulated as follows: (a) whether it is just and equitable to grant to the claimant an extension of time under section 76(5) Sex Discrimination Act, in which to commence this case; and (b) whether access to an internal appeals procedure of the first defendant constitutes a service or facility within the meaning of section 20 Race Relations Act, or sections 29 of the Sex Discrimination Act.
6.	The defence, in its paragraph 16, says this in relation to the particulars of claim:
“Paragraph 11 is noted. The Defendants' contention is that neither the internal grievance or complaints or other 'service' referred to is capable of constituting a service or facility within the meaning of section 20 of the Race Relations Act 1976 or section 29 of the Sex Discrimination Act 1975.” 
7.	Those two sections are formulated in a manner which is very similar. It is sufficient for present purposes to refer to the Sex Discrimination Act, which says in section 29(1):
“It is unlawful for any person concerned with the provision... of goods, facilities or services to the public or a section of the public to discriminate against a woman who seeks to obtain or use those goods, facilities or services -
(a) by refusing or deliberately omitting to provide her with any of them, or...
(2) The following are examples of the facilities and services mentioned in subsection (1) -
(a) access to and use of any place which members of the public or a section of the public are permitted to enter.” 
8.	In the event the judge did not decide the first of the two preliminary issues relating to an extension of time, it only applied to the Sex Discrimination Act claim. Time had already been extended in relation to the Race Relations Act complaint. What the judge ordered appears on page 36 of the bundle, and it was in these terms:
“1. It is declared that the Claimant is not entitled to bring proceedings against the First Defendants pursuant to the provisions of s 29 of the Sex Discrimination Act and s 20 the of Race Relations Act.
It is ordered:
2. That the references to claims brought under sections 1, 4 and 29 of the Sex Discrimination Act and to a remedy under the Sex Discrimination Act in the Amended Particulars of Claim are struck out.
3. The Claimant is to pay the first Defendant's costs of today's hearing such costs to be assessed if not agreed.
4. These proceedings are stayed until the Claimant makes a contribution of £250 towards the First Defendant's costs.” 
9.	It is common ground that a claim under the Race Relations Act remains live by reason of the provisions of section 25 of that Act.
10.	With the benefit of hindsight it appears that it was probably a mistake to have formulated a preliminary issue at all. It was clearly a mistake to have formulated it in the way in which it was framed. That is why the judge made an order in wider terms than were identified in the issue.
11.	The judge decided that as a matter of interpretation of the constitution of HARE, the institution was such that no claim of sexual discrimination could be brought because it was in effect a private club. Put in the convoluted wording of the Sexual Discrimination Act he held that HARE was not engaged in the provision of goods, facilities or services to members of the public or to a section of the public. It will be seen that really there are two holdings implicit in that: (1) that they were not engaged in the provision of goods, facilities or services; and (2) that if they were they were not engaged to providing them for members of the public or a section of the public.
12.	The judge concentrated on the latter. At the time the issue was formulated, it was thought by the appellant, and quite possibly everyone, that the argument would be about the matters which she had identified in paragraph 11(a) of her particulars of claim which concentrated not so much on the question of members of the public, but rather on the question of services. Paragraph 11, it will be remembered, of her particulars of claim, says at its very end after referring to HARE:
“... which is an organisation open to members of the public who live or work in Hackney.” 
13.	That paragraph is dealt with by paragraph 16 of the defence (which I have already read) which does not in term take issue with the assertion that HARE is an organisation open to members of the public. The defence thus does not make clear the point to which I am about to come which was going to be at the centre of the case. The point is this.
14.	On 9th January 2001 those advising HARE, no doubt wishing to be fair to a litigant in person in a situation where the point at issue had not been clearly identified, wrote a very helpful letter setting out an argument to the effect that users of the services in question were not the public or members of the public. That is essentially a question of evidence. That evidence may include the constitution of the body under attack and evidence either by the complainant or by the body under attack that its constitution does not represent the reality of the situation: see Charter v Race Relations Board [1973] AC 868 at pages 903 and 908. At 903 Lord Simon of Glaisdale says at E: 
“... it will always be open to any interested person... to show that the rules are a sham, that anyone who applies can join, that the mode of entry is, in other words, a mere formality. Equally it must be open to the club to show that the rules give an inadequate picture of the true degree of selectivity.” 
15.	At page 908 Lord Cross of Chelsea says:
“The question on which side of the line any given club falls is, no doubt, a question of fact to be decided by the judge on the evidence adduced by each side in the particular case.” 
16.	The problem, as it has been presented to us, is that the appellant wishes to call evidence to the effect that the reality of the situation, whatever the constitution may say, is that any member of the public can become a member of HARE. She has a point in reserve which turns on the interpretation of the constitution which had been decided against her by the learned judge (and we have not permitted argument on that point although she wished to argue it in this court) thinking that we could dispose of the matter most sensibly on the procedural point by sending it back. To that course Mr Murray Shanks assented. She says that when she received the letter and had digested its content she realised for the first time that the access to HARE by any member of the public was a crucial point in the case.
17.	She appeared before the judge in person and, as so often happens with litigants in person, she appears to have mixed assertions of fact with submissions of law. It is fair to say that she is experienced in the field of discrimination law. But she is not a qualified advocate and, at any event in the context of being on her feet before the judge, she appears not to have had the distinction between fact and law clearly in mind. She took the view that, in the light of the appearance of what she regarded as a new point which had factual elements in it, the right course was either to abandon the hearing of the preliminary point and let the whole matter go for trial, or alternatively adjourn the hearing of the preliminary point.
18.	It may well be, as Miss Gallafent who was there asserts, that she did not formulate her submissions as crisply as this as early in the proceedings as she should have done. Miss Gallafent tells us that they only appeared, in any event in their fully developed form, after the conclusion of the judge's judgment. We have been shown by Miss Gallafent a note of the hearing before the judge. From that it appears that she said that the club was open to anyone in Hackney. There is a dispute of recollection between Miss Gallafent and the appellant as it to whether an adjournment was asked for prior to the judge making his ruling. It is clear that the judge decided the case entirely on the basis of the written constitution of HARE and made no reference to any assertion of fact which had been made by the appellant.
19.	I have to say that my sympathies are entirely with the judge who was faced with a badly formulated issue, clarified at the last minute, and a litigant in person. I also have some sympathy with the appellant. The legislation is complex and difficult, a fact to which the frequent appeals to the higher courts bear eloquent testimony. The Charter report itself is over 40 pages. She tried to gets free legal advice and was not able to do so in time. Before us she has been represented pro bono by Murray Shanks at the behest of the Bar's pro bono unit. The court is grateful to him for agreeing to do this.
20.	Like the single Lord Justice who gave leave I feel some anxiety, lest this lady has, by a set of curious chances, not found herself in a position to take a point which was fairly open to her. I do not criticise the judge but, now that the matter has been explained to us, I understand that she feels a sense of injustice. The case will, in any event, have to be tried under the Race Relations Act, and the additional time taken to deal with the complaints under the Sex Discrimination Act should not be substantial.
21.	I would allow this appeal and quash the order of the judge and remit the matter to the county court for hearing in its entirety. It is right to say that we have not been addressed on costs at all, and certainly, if any submissions are to be made about that below or before us we should be very open to them.
22.	LORD JUSTICE CHADWICK: CPR 52 rule 11(3) requires this court to allow an appeal where the decision of the lower court was - “(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court”.
23.	In order to decide the preliminary issues which had been formulated for trial before him the judge found it necessary to decide whether the rules contained in the constitution of the Hackney Action for Racial Equality had the effect that, as a matter of construction, those admitted to membership fell outside the expression “section of the public” for the purposes of the Sex Discrimination Act. That was a question which, as the House of Lords made clear in Race Relations Board v Charter, was a question of fact to be decided upon evidence if the parties wished to adduce it.
24.	In the circumstances which Lord Justice Schiemann has described, the appellant before us is, I think, entitled to say that she did make it clear to the judge - albeit in less explicit terms, perhaps, than those advanced in this Court - that she did wish to adduce evidence on the point. She was not permitted to do so. In my view the exclusion of that evidence leads to the conclusion that this matter must be remitted back to the lower court.
25.	SIR CHRISTOPHER STAUGHTON: I agree with both judgments. It seems to me that we are being a little indulgent in this case, but it is appropriate to do so.
(Appeal allowed; matter to be remitted back to the lower court; costs of hearing on 17th January to be reserved to the trial judge).