Anyanwu v South Bank Student Union (House of Lords)

In brief

House of Lords, 22 March 2001. FIVE Law Lords: Lord BINGHAM of Cornhill (LEADING speech, [1]-[20], on statutory construction), Lord Browne-Wilkinson [21], Lord STEYN [22]-[35] (the fullest treatment of strike-out), Lord Hope of Craighead [36]-[47], Lord Millett [48]-[49]+. Appeal ALLOWED, unanimous in result — but note the internal texture (below). *** THIS IS A STRIKING-OUT APPEAL, NOT A FULL-MERITS DISCRIMINATION CASE. *** Two dismissed student-union sabbatical officers claimed the university had 'knowingly aided' the union to dismiss them unlawfully, contrary to RRA 1976 s.33(1). Procedural history: ET struck out (res judicata) → EAT reversed (Morison P) → CA majority restored the strike-out on a ground it raised ITSELF mid-appeal — that 'aids' could not cover a 'prime mover' (the CA's own 'prime mover/free agent' gloss), Pill LJ dissenting ([2000] ICR 221). TWO HOLDINGS, BOTH REAL — a record carrying only one is incomplete: (1) CONSTRUCTION OF 'AIDS' (Bingham [5]) — ordinary meaning: 'helps or assists... not so insignificant as to be negligible... points towards a relationship of cooperation or collaboration'. *** The House did NOT broaden 'aids'. *** It rejected the CA's unduly NARROW gloss while confirming 'aids' remains NARROWER THAN and DISTINCT FROM 'procures/induces' (RRA ss.30-31) and 'instructs/causes/induces' (Millett [49]). (2) STRIKE-OUT DISCIPLINE (Steyn [24]) — discrimination claims should not be struck out as an abuse of process 'except in the most obvious and plainest cases', being 'generally fact-sensitive'. APPLYING that construction, a majority found an ARGUABLE case; remitted to an employment tribunal. *** BUT: Bingham [18] and Millett [48]-[49] BOTH RECORD GENUINE DOUBTS whether 'aiding' was made out on these facts and expressly DEFER to the majority. Two of five had real reservations. *** This is not a confident 5-0 endorsement of the claim's strength — useful texture when assessing how strong an 'arguable case' threshold really is. COMPANION CASE — SAME PANEL, SAME DAY: Hallam v Cheltenham Borough Council [2001] UKHL 15 (heard immediately after; Bingham cross-references Anyanwu at Hallam [7]). Appeal DISMISSED there — police officers who supplied information contributing to a council's discriminatory decision did NOT 'aid' it, because they aided the DECISION-MAKING, not the unlawful ACT itself. That is the limiting principle on how far Anyanwu's construction extends.

Key provisions

• [1], [5] (Lord Bingham) — RRA s.33(1) construction: what 'aids' means: Ordinary meaning: 'helps or assists... not so insignificant as to be negligible... points towards a relationship of cooperation or collaboration'. Distinct from and narrower than procure/induce (ss.30-31) — framework — the ACTUAL operative test. Use to resist an over-broad OR an over-narrow reading of 'aiding' from either side.
• [17]-[18] (Lord Bingham) — The three-question test: (i) what was the unlawful act? (ii) what did the alleged aider do? (iii) do those acts satisfy s.33(1)? — framework — the practical checklist for pleading or resisting an aiding claim. Structure skeletons against it.
• [19] (Lord Steyn) — The CA's 'prime mover / free agent' gloss REJECTED: 'not helpful to introduce "free agents" and "prime movers", which can only distract attention from the essentially simple test' — claimant — cite to shut down an opponent reintroducing a prime-mover causation argument. A 'what not to argue' authority.
• [24] (LORD STEYN — *** NOT Lord Hope; see Notes ***): THE STRIKE-OUT DISCIPLINE — verbatim: 'such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society.' — claimant — THE genuine strike-out passage. Attribute to STEYN.
• [39] (Lord Hope) — Hope's OWN, different strike-out threshold: 'I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial' — respondent — a more standard formulation than Steyn's; useful for respondents arguing a genuinely weak claim. Note the two Law Lords state the test DIFFERENTLY.
• [48]-[49] (Lord Millett) — The aiding / instructing distinction: Encouraging, inducing, inciting, causing and procuring are DISTINCT FROM and BROADER THAN 'aiding' — framework — *** maps directly onto the EA 2010 s.111 (instructing/causing/inducing) vs s.112 (knowingly helping) split. Use for correct EA 2010 mapping; do NOT cite ss.111-112 together for an aiding point. ***
• Hallam v Cheltenham BC [2001] UKHL 15 at [17]-[18] (Millett) — THE LIMITING PRINCIPLE (companion case, same panel, same day): Aiding a DECISION is not the same as aiding the unlawful ACT done pursuant to it; Millett's bystander illustration is the clearest statement — respondent — the strongest authority for resisting an over-extended aiding claim. Absent from our record entirely until now.

When relevant

Applications to strike out discrimination claims or dispose of them summarily. Aiding and instructing discrimination under EA2010 ss.111-112. Resistance to case management decisions that seek early disposal. Claims against organisations or individuals for facilitating or encouraging discriminatory acts.