England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		19th February 2004

1. LORD JUSTICE PETER GIBSON: This is the hearing of an appeal, the allowance of which has been conceded by the respondent, Northern Spirit Ltd ("Northern"), so that the only contentious issues that at the start of the hearing remained were as to the appropriate form of order to be made and as to costs. In respect of the first matter it appears, as a result of what we have heard from the parties today, that in effect there is no dispute on that matter.
2. Because of the highly unusual background to this case, I must summarise as briefly as I can what has occurred. The appellant, Mr Lawal, was employed by Northern for 20 years until March 1997 when he left Northern's employment. He asked for a reference from Northern nearly two years after he left. On 7th October 1999, acting in person, he presented an originating application to an Employment Tribunal complaining of "racially-motivated post-employment references detriment voluntary resignation". That has been taken to be a complaint of racial discrimination under the Race Relations Act 1976 ("the 1976 Act").
3. Northern took the point that the Tribunal had no jurisdiction to hear the case, when the events complained of took place after Mr Lawal's employment had terminated. There was a preliminary hearing before a Tribunal, sitting at Sheffield. No evidence was heard. The facts of the complaint were never gone into. On 12th July 2000 the Tribunal held that it had no jurisdiction because it was bound by the decision of this court in Adekeye v Post office (No 2) [1997] IRLR 105. In that case it had been held that the Tribunal does not have jurisdiction to entertain complaints under the 1976 Act based on events after the termination of employment.
4. Mr Lawal appealed to the Employment Appeal Tribunal against that decision. For the appeal Northern had instructed Mr Nicholas Underhill QC. He is a Recorder and sat as a part-time judge at the Appeal Tribunal. The constitution of the Appeal Tribunal due to hear Mr Lawal's appeal included a lay member who had previously sat with Mr Underhill on another case. Mr Lawal objected, raising what was known as "the Recorder objection", that is that there is a breach of Article 6(1) of the European Convention on Human Rights, as well as a real possibility of bias, for a case to be heard in the Appeal Tribunal in which: (1) a Recorder who sits as a judge of the Employment Appeal Tribunal appears as counsel; and (2) the constitution of the Appeal Tribunal hearing the case includes a lay member who has sat with the Recorder in the Appeal Tribunal.
5. Because of the Recorder objection taken by Mr Lawal, the Appeal Tribunal to hear his appeal was reconstituted and the appeal came before the Appeal Tribunal consisting of Lindsay J presiding and two lay members, neither of whom had sat with Mr Underhill in the Appeal Tribunal. The Lord Chancellor's Department was allowed to intervene because of its interest in the Recorder objection. The Appeal Tribunal on 15th January 2002 dismissed both limbs of the appeal. It rejected the Recorder objection. On the jurisdiction issue it considered itself bound not only by Adekeye but also by two other decisions of this court.
6. Mr Lawal lodged an appellant's notice on 24th January 2002. He sought and on 7th March 2002 obtained from this court (Mummery LJ and Sir Christopher Slade) permission to appeal on both the Recorder objection and the jurisdiction issue. On 8th May 2002 Mummery LJ directed that the appeal on the two points should proceed separately, the appeal on the jurisdiction issue to await the decision of the House of Lords in D'Souza v London Borough of Lambeth.
7. On 30th October 2002 this court (Lord Phillips MR and Mummery LJ, Pill LJ dissenting) dismissed Mr Lawal's appeal on the Recorder objection, but made no order as to costs. This court also directed that the appeal on the jurisdiction issue should await the decision of the House of Lords in D'Souza.
8. The appeal by Mr Lawal on the Recorder issue was heard by the House of Lords. Again, the Lord Chancellor's Department appeared as an intervener. On 19th June 2003 the House of Lords allowed the appeal to the extent of declaring that Mr Lawal was entitled to succeed on the Recorder objection. The House of Lords remitted the case to this court to rule on the jurisdiction issue, taking into account the decision which that day had been given by the House of Lords in D'Souza. In that case (one of several cases reported together under the name Rhys-Harper v Relaxion Group Plc [2003] ICR 867), the House of Lords held that, notwithstanding that the discriminatory acts complained of took place after the applicant's employment had ended, the Tribunal had jurisdiction to hear the complaint if it arose out of or was attributable to the employment relationship. The House of Lords made no order as to costs either in this court or in the House of Lords.
9. In the light of that decision, Northern's solicitors, Kennedys, wrote on 28th October 2003 to the Civil Appeals Office, with a copy to Mr Lawal, requesting that in accordance with paragraph 13.1 of the Part 52 Practice Direction, the appeal should be allowed on paper. They accepted that the decision of the Appeal Tribunal and the Employment Tribunal could not stand, and that the Employment Tribunal would have to carry out an inquiry into the facts to see if there was a sufficient continuing employment relationship at the relevant time. Kennedys sought an order that the appeal be allowed and the case remitted to the Tribunal which might, but need not, be the same as the original Tribunal, with a direction that it should determine: (a) the issue of jurisdiction in accordance with the opinions of the House of Lords in D'Souza and, if the Tribunal has jurisdiction (b) the substantive issue relating to the complaint by Mr Lawal of discrimination. They said that they did not believe that any order for costs should be necessary, since Mr Lawal would have incurred no costs in relation to that aspect of the appeal. They said that they were copying the letter to Mr Lawal in the expectation that he would join in that request.
10. That expectation was not fulfilled, Mr Lawal writing a succession of letters all in his manuscript and making other representations to this court. They are all couched in strong language and in (if he would excuse me for saying so) a highly idiosyncratic style, with unconventional use of language. All these communications were directed to why Kennedys' suggested order was unacceptable to him.
11. Mr Lawal's manner of writing does not make him very easy to understand. He makes frequent reference to authority. But while he has helpfully supplied copies of the cases to which he refers, he plainly finds difficulty in distinguishing the relevant from the irrelevant. I am afraid that what he said as to why he did not agree to a consent order and to the remitter of the case back to the Employment Tribunal makes no sense to me. It was plainly sensible for Northern to try to obtain a consent order allowing the appeal without the necessity of a court hearing with its attendant costs.
12. However, Mr Lawal earlier this month supplied a draft order setting out what he wants. First, he asks that the appeal be allowed. Northern accepts that, and has accepted that since 28th October 2003. Concomitant with that will be an order that the order of the Appeal Tribunal and the decision of the Employment Tribunal should be set aside.
13. Second, he asks that the case be remitted to the Employment Tribunal for a rehearing in accordance with the judgment of this court. That there must be a remitter to the Tribunal and not the Appeal Tribunal is plain. The correct order is, as Northern suggested and Mr Lawal has now properly conceded, that the remitter should be with a direction that the Tribunal should determine the point on jurisdiction in accordance with the opinions of the House of Lords in the Rhys-Harper case and that, if it decides that point in favour of Mr Lawal, it should go on to determine the substantive issue of whether Northern unlawfully discriminated against Mr Lawal under the 1976 Act.
14. Mr Lawal had submitted in his draft order that the case should be remitted to a differently constituted Tribunal. As the Tribunal has never had the opportunity to consider jurisdiction in the light of the House of Lords' decision on the point, and only decided what it did because it was bound by Adekeye, there is no reason to require a differently constituted Tribunal to hold the further hearing. However, there may be practical reasons why it would be difficult, if not impossible, to reconstitute the same Tribunal three years after the original hearing. I would leave it to the Regional Chairman to determine the constitution of the Tribunal.
15. Third, Mr Lawal by his draft order asks that the respondents, that is both Northern and the Lord Chancellor's Department, should pay his costs of the appeal. When it was put to him that the Lord Chancellor's Department's interest was only as an intervener on the Recorder objection and that the House of Lords had made no order as to costs, he accepted that he could not obtain an order for costs against the Lord Chancellor's Department. That was a very proper concession.
16. Finally one comes to the substance of the dispute before us today. Mr Lawal, by a document dated 12th February 2004, put his submission in this way. Under what he called "the Rubicon doctrine of 49BC", the appropriate order, he said, should be that he should have his costs. He referred to Rule 52.10(2)(a), (b) and (c). CPR 52.10(2) sets out the appeal court's powers to make orders, including in paragraph (c) to make a costs order. But for the principles on which costs order are made, one needs to go to Rule 44.3 to which I will return. What Mr Lawal calls "the Rubicon doctrine" -- no doubt borrowing from Julius Caesar's decision in that year to take the fateful step of crossing the boundary of the province of which he was governor -- is not any recognisable legal principle. Mr Lawal in effect is saying that if a party accepts that an appeal should be allowed, the costs must follow that event. But there is nothing in the Civil Procedure Rules to take away the discretion expressly conferred on this court by Rule 44.3. This spells out not only that the court has a discretion whether or not to order one party to pay another party's costs, but also provides that if the court decides to make an order about costs the general rule is that the unsuccessful party will be ordered to pay the successful party's costs, but may make a different order. Among the matters to be taken into account is the conduct of the parties: Rule 44.3(4)(a) as amplified in Rule 44.3(5).
17. Mr Lee Evans, for Northern, submits that there are no costs of Mr Lawal incurred in the appeal for which he could claim. He adds that Mr Lawal has not provided any details of costs which have been incurred by him. If Northern is wrong on that and Mr Lawal can show that he has incurred costs, Mr Evans says that any application for costs should be disallowed by reason of Mr Lawal's behaviour in conducting the case. He draws attention to what he describes as gratuitously offensive language in letters which have been sent by Mr Lawal, in particular a letter dated 15th December 2003 which makes adverse comments, not only about Kennedys, but also about other persons including court officials. He says that Northern should be awarded the costs of this hearing because of Mr Lawal's unreasonable rejection of the reasonable offer made in the letter of 28th October 2003.
18. While Mr Lawal has not given any details to Northern of the costs which he has incurred, it is to my mind plain that costs and expenses will have been incurred by him in the prosecution of this appeal. He had to lodge an appellant's notice, he had to make application to this court for permission to appeal and he had to appear before this court at the hearing at which he was granted permission. There will have been other costs of preparation for the appeal, including costs which have been incurred in considering the effect of the House of Lords' decision in the Rhys-Harper case.
19. Prima facie, he is entitled to be reimbursed those costs and expenses, subject to the objection taken as to his conduct. The periods with which we are concerned are, effectively, the period prior to the receipt by Mr Lawal of the letter of 28th October 2003 and the period from that date until this hearing, noting in respect of the first period that there was what amounted to a stay from 8th May 2002 until the House of Lords gave their decision on 19th June 2003. In that period the appeal could not be progressed by steps taken in the appeal.

20. Mr Evans rightly accepted that the conduct of which he makes complaint was contained in the letters and other communications sent only after 28th October 2003. I can see no reason why that should affect the entitlement of Mr Lawal to such costs as have been properly incurred in respect of the appeal to this court prior to 28th October 2003. If costs are not agreed, the dispute would have to go before a costs judge who would determine what costs are properly recoverable.
21. As for the period after the receipt by Mr Lawal of the letter of 28th October 2003, Mr Lawal concedes that no order as to costs is the appropriate order. He says of the language that was used by him that it reflects the fact that there is no love lost between the parties.
22. Mr Evans seeks an order for costs in his favour in respect of the period from the receipt of the letter of 28th October 2003. Mr Lawal's language used in correspondence -- though I hasten to add not before us, where he has presented his arguments without any use of intemperate language -- is such as to deserve condemnation. That language can only be described as intemperate. It does not assist litigation that parties to it should be offensive in what they say about the other side. Mr Lawal has said that he has the right of free speech. Of course he has, but I repeat that offensive language is of no assistance in conducting litigation and does not further the overriding objective.
23. However while I deplore the offensive and extreme language which Mr Lawal far too readily employs, I would not regard that as being the crucial matter when deciding what costs should be awarded. For my part I think it sufficient to say of the communications by Mr Lawal after receipt of the 28th October 2003 letter, that it simply was not helpful for him to have adopted the stance which he initially did of outright opposition to what was a reasonable proposal. True it is that he was entitled to object to the order proposed, in so far as it did not allow him any costs. But the basis of agreement was surely there and he should have acceded to the substance of what was offered.
24. I would therefore not allow him any costs in respect of those communications, but that would be reflected in the order which he is now prepared to accept that there be no order as to costs in respect of the period after the receipt of the letter of 28th October 2003. Because Mr Lawal was perfectly entitled to say that as the successful appellant he should receive costs which he had incurred prior to receiving the letter of 28th October 2003, it seems to me that he has some merits on his side.
25. The right order to be made in my judgment in all the circumstances is that there be no order as to costs after receipt of the letter by Mr Lawal of 28th October 2003, and I would include in that the costs incurred in respect of this hearing.
26. LORD JUSTICE LAWS: I agree that the orders proposed by my Lord, Lord Justice Peter Gibson, should be made, for all the reasons given by him.
27. LORD JUSTICE LONGMORE: I agree also.

ORDER: Appeal allowed with costs up to receipt of the letter by Mr Lawal of 28th October 2003, with no order as to costs thereafter, to include in that the costs incurred in respect of this hearing; indication that there should be expedition of the hearing in the Employment Tribunal.

(Order not part of approved judgment) ______________________________