Case No: A2/2011/1103

Neutral Citation Number: [2011] EWCA Civ 1562
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice
Strand, London, WC2A 2LL

Friday, 11 November 2011

Before:

LORD JUSTICE DAVIS

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Between:

	ILESANMI	
Appellant	
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GREENWICH & BEXLEY COTTAGE HOSPICE	

Respondent	

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The Appellant appeared in person. 

The Respondent did not appear and was not represented.

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Judgment

Lord Justice Davis:

1.	This is a renewed application by Mrs Ilesanmi, who has appeared in person before me, whereby she seeks permission to challenge a decision of HHJ Peter Clarke, sitting as a judge in the Employment Appeal Tribunal, given on 31 March 2011.  By his decision HHJ Clarke upheld the decision of the Employment Tribunal, given for reasons set out in a ruling of 29 September 2009, whereby Mrs Ilesanmi was ordered to pay costs of certain Employment Tribunal proceedings commenced by her to her employer, the Greenwich & Bexley Cottage Hospice.  

2.	I have explained to Mrs Ilesanmi that at this stage permission to appeal can only be granted if a material error of law or other compelling reason is shown.  Indeed, on one view, an even stricter test than that is appropriate because this is a second stage appeal.  What this court is not permitted to do in law is to re-investigate and re-open the facts as found by the tribunals below.

3.	The reason why the Employment Tribunal ordered Mrs Ilesanmi to pay costs in the amount of £5000 to the respondent was that the Employment Tribunal, who heard the evidence, took the view that the proceedings pursued by Mrs Ilesanmi were misconceived and accordingly, exercising their powers pursuant to rule 40 of the Employment Tribunals’ Rules, they ordered her to pay costs in the sum of £5000.  It should be noted that the respondent’s costs were in fact in excess of £11,000 but the Tribunal had regard to considerations of proportionality and Mrs Ilesanmi’s means.

4.	It is also part of the background, and as the Employment Tribunal had noted, that there had been a previous preliminary hearing before Employment Tribunal Judge Zuke, who had taken a view that there were no realistic prospects of success on the evidence then before him and had ordered Mrs Ilesanmi to pay a deposit of £100, so in effect that was at least a warning shot to Mrs Ilesanmi.  In the event, when the matter came on for a full hearing before the Employment Tribunal, they found that allegations had fallen wholly short of the necessary degree of proof and indeed in due course found had been misconceived.

5.	Mrs Ilesanmi is very aggrieved at the decision to order her to pay costs.  She says that at all stages she has acted professionally.  She submits that she was subjected to discrimination during the course of her employment and that she was assaulted and other unpleasant things happened to her.  She submits that when that sort of thing happens to people then it is entirely right that they should seek to challenge those things by way of Employment Tribunal proceedings.  She says, indeed, that to award costs against her is “illegal” and I think she suggests that that itself may be racially motivated.

6.	I have to say that an award of costs in these circumstances is not illegal; it is sanctioned by the rules.  The only question is whether the Employment Tribunal was entitled, having regard to the facts, to conclude that these proceedings were misconceived.  That is precisely the approach adopted by HHJ Clarke in the Employment Appeal Tribunal and he was right so to approach the matter.

7.	It is the case that I cannot myself go over again all the underlying facts.  Those have been found and unfortunately for Mrs Ilesanmi have been found against her.  The Tribunal found that the grievance that she had raised was properly and genuinely investigated and that in effect was the end of the matter, and that such allegations as Mrs Ilesanmi had made were simply not borne out by any evidence.  I cannot see any arguable error of law in the approach of HHJ Clarke in the way that he dealt with the matter.  Mrs Ilesanmi clearly feels -- and feels genuinely and strongly -- that this is unjust to her.  But with respect it depends on the findings of fact as made by the tribunals below and those are against her.  Mrs Ilesanmi feels that she received discrimination at all levels, but again it is the duty of this court to have regard to the findings of fact of the lower courts.

8.	On the papers Mrs Ilesanmi also made in the alternative a complaint about the size of the costs awarded against her, that is to say £5000.  She said that was too much.  It had insufficient regard to her ability to pay and to her personal circumstances, and amongst other things that she no longer has any employment.  Mrs Ilesanmi has not sought to pursue that before me today but I have nevertheless considered it.  All I can say is that the Employment Tribunal clearly considered -- and considered carefully -- the question of her means and the question of proportionality and it is not open to this court to say that the Tribunal reached a decision which is erroneous in law as to the amount.  

9.	Although I do understand that Mrs Ilesanmi feels strongly about the justice of the case, I am not in any position to interfere and this application is refused.

Order:  Application refused.