England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ Peter Clark QC and Members

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/11/2013

Lord Justice Beatson:

Introduction

1. Mr John Scott has applied for permission to appeal against the Order of HHJ Peter Clark QC, Mrs McArthur and Mr Smith in the Employment Appeal Tribunal ("the EAT"), dated 20 April 2012. The EAT dismissed his appeals from decisions of the Employment Tribunal ("the ET") striking out his claims for unfair dismissal and breach of contract against Sir Bob Russell, the Member of Parliament for Colchester, in whose constituency office he worked as a part-time office manager between 18 May and 25 June 2009, when he was summarily dismissed.
2. The EAT also dismissed Mr Scott's appeal against a decision of the Registrar of the EAT refusing his application to adduce fresh evidence for the appeal, and ordered him to pay Sir Bob's costs in respect of that appeal. Mr Scott has also applied for permission to appeal that decision. On 13 November 2012, Mummery LJ ordered a "rolled-up" hearing of the applications; that is a hearing in which the applications are heard as fully as the appeal itself so that, if permission is granted, the appeal can be determined without a further hearing.
3. Before the ET and the EAT, Mr Scott did not have the benefit of legal representation, but was a litigant in person. He has since obtained legal representation from Thompson Smith and Puxon, a firm of solicitors, and Mr Peter Edwards, of counsel, who appeared on his behalf at the hearing. We have been assisted by the written and oral submissions of Mr Edwards and those of Mr Stephen Goodfellow, on behalf of Sir Bob.
4. Mr Scott was dismissed following a complaint by Claire Beedell, a co-worker and a senior caseworker who had been employed by Sir Bob for five years. He instituted proceedings in the ET pursuant to section 103A of the Employment Rights Act 1996 ("the 1996 Act") for unfair dismissal based on victimisation for having made a protected disclosure, sex discrimination, and breach of contract.
5. The factual background was fully set out by the ET in its decision. Because (see [21] below) of the way the scope of this application has been narrowed and now only concerns costs, it is not necessary to do so in any detail here. The matters at issue before the ET included whether the incident that was said to have led to Ms Beedell's complaint and Mr Scott's dismissal did in fact occur and could have occurred. It was Mr Scott's case that the incident did not occur and could not have occurred on either of the two dates Sir Bob referred to at the hearing because he was not at work on either of the two days. Sir Bob was cross-examined by Mr Scott on both matters.

The Proceedings in the Employment Tribunal

6. The ET held a pre-hearing review on three days at which evidence, including the evidence of Sir Bob, was heard. On the reason for the dismissal, the ET stated (at [70]) that the more the events were the subject of Mr Scott's intense cross-examination of Sir Bob, the more the evidence in its judgment reinforced "the averred reasons as the true grounds for the dismissal, as understood and fiercely resented by the Claimant at the time, justified or not". In an Order promulgated with reasons on 4 January 2011, the ET ordered that Mr Scott's claim be struck out under Rule 18(7)(b) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Rules SI No 1861 of 2004 ("the ET Procedure Rules") because it had no reasonable prospect of success. The reasons for the ET's decision to strike out are conveniently summarised in the decision of the EAT, at [6]. They are:-

"(1) … [t]he reason for dismissal related to the Beedell complaint. It had nothing to do with any protected disclosure. Thus, the section 103A [of the Employment Rights Act 1996] had 'not the remotest prospect of succeeding'. (para. 64);

(2) [T]he claimant raised no prima facie case of less favourable treatment than an actual or hypothetical woman in connection with his dismissal. This claim had no realistic prospect of success. (para. 70);

(3) Having considered the standard House of Commons terms and conditions applicable to the claimant's employment, that the claimant was, at the time of dismissal, on a six month trial. During that probationary period it was open to the respondent to dismiss the claimant on four weeks notice (clause 47) in accordance with clause 2, without going through the disciplinary procedure provided for in clauses 29 – 40. Since the claimant had received four weeks pay in lieu of notice there was no prospect of his breach of contract claim succeeding (paras. 58 – 59)."

7. The ET also indicated in its reasons for striking out the claims that it was inclined to make a costs order against Mr Scott. Those reasons referred in strong terms to: (a) his failure to follow case management directions ([3] – [4]), (b) an absence of any credible evidential basis in the primary facts asserted by him ([55]), and (c) his persistence in presenting evidence of no relevance to the issue but which tended to discredit Sir Bob ([73]). The ET also stated he offered "the flimsiest evidence" of any protected disclosure ([60]), and ([71]) that he issued proceedings on a flimsy basis and has pursued them in tendentious and prolix fashion, indifferent to case management.
8. The ET concluded (at [56]) that Mr Scott had embarked on "speculative litigation to circumvent the bar which his lack of one year's qualifying period of employment…places on his genuine grievance of unfair dismissal…".^[1] It also stated (at [72]) that "it borders on the vexatious that, as we have found, he brought claims under the jurisdiction of discrimination and public interest disclosure which not only have no reasonable prospect of success but were designed to circumvent the lack of qualifying service for a claim of 'ordinary' unfair dismissal".
9. An employment tribunal is empowered by Rule 40 of the ET Procedure Rules to make a costs order against a party where that party has in bringing or in conducting the proceedings acted "vexatiously, abusively, disruptively, or otherwise unreasonably". After the ET received submissions from the parties about costs, there was a further hearing on 13 June 2011. In an order dated 7 July, it ordered Mr Scott to pay Sir Bob's costs subject to a detailed assessment in the County Court. By a notice received on 21 April 2011, Mr Scott appealed the strike-out order. By a notice dated 15 August 2011, he appealed the costs order.

The application to adduce fresh evidence for the appeal

10. In a letter dated 12 December 2011 Mr Scott applied to the EAT to adduce further evidence for his appeals. The evidence consisted of his wife's notes of the evidence given at the pre-hearing review and press reports of the hearings on 11 October and 7 December 2010. A letter dated 13 December on behalf of the Registrar of the EAT drew Mr Scott's attention to EAT Practice Direction 2008, paragraph 8 in which the key tests for adducing fresh evidence are set out. Those tests are substantially those laid down in Ladd v Marshall [1954] 1 WLR 1489. The letter from the EAT stated that, on reviewing Mr Scott's application, the EAT was not satisfied that the tests were "sufficiently addressed" in the application and that no further action would be taken on it.
11. Mr Scott's response is contained in a letter dated 16 December. He sought to address the tests in paragraph 8 of the EAT Practice Direction. The first limb of the test in paragraph 8 is that the evidence could not have been obtained for use at the ET hearing. Mr Scott stated the evidence could not have been obtained because it consisted of newspaper reports dated 12 October and 8 December 2010, and contemporaneous notes taken by Mrs Scott at the hearings on 11 October and 7 December 2010. He maintained that it therefore satisfied the first limb of the test. The second limb of the test in paragraph 8 is that the evidence is relevant and would have an important influence on the hearing, Mr Scott's letter stated that the newspaper reports and Mrs Scott's notes gave verbatim contemporaneous accounts of the reasons for his dismissal which differed from the ET's judgment, because the judgment failed to say on what day he was alleged to have been guilty of misconduct although much of the hearings were concerned with this and Mr Scott's contention that he could prove he was not at work on the date given by Sir Bob, and because the evidence would assist in proving bias at the hearings. The third limb of the test is that the evidence is apparently credible, and Mr Scott submitted that it was.
12. The decision of the Registrar refusing Mr Scott's application is contained in a letter dated 22 December 2010. The letter stated that Mr Scott had not explained why two newspaper articles would have an important effect on the case. The Registrar considered them to be irrelevant. As to Mrs Scott's notes, the letter stated that as they did not exist until after the case had been heard, there could be no reason why they could have an important effect on it, and, if it was considered necessary to refer to contemporaneous notes, the procedure in EAT Practice Direction 2008, paragraph 7 should be followed. Mr Scott applied to appeal that order to the EAT.

The decision of the EAT: substance

13. The EAT noted that there was no appeal against the ET's order striking out the "whistleblowing" unfair dismissal claim pursuant to section 103A of the Employment Rights Act 1996. As to the matters where an appeal against the strike out order was pursued, the EAT stated:-

"18. We have considered the allegations…under the heading 'Bias' and have concluded that there are no grounds for believing that a reasonable observer would conclude that the [ET] in this case was biased. The complaints there raised by the claimant against Employment Judge Skinner relate to perfectly proper case management decisions taken by the Employment Judge in conducting the proceedings below. We reject this complaint without requiring the procedure under para. 11 PD to be deployed.

19. We agree with the Employment Tribunal that no prima facie case of direct sex discrimination was raised by the claimant. Having found as a fact that the respondent's reason for dismissal was the complaint by Ms Beedell, that answered the 'reason why' question. His dismissal had nothing to do with his sex.

20. We have considered the terms and conditions of the claimant's employment with the respondent. The respondent accepted that he summarily dismissed the claimant without going through the disciplinary procedure provided for in the terms and conditions, nor the ACAS code of practice expressly incorporated at clause 29. The question is whether, on its proper construction, the terms and conditions provided for such a procedure to be circumvented where dismissal occurs during the initial six month probationary period. The House of Commons Guidance on Disciplinary Matters, forwarded to us by the claimant following our hearing, does not affect that question.

21. The claimant submits that it does not. In written submissions for the purposes of the preliminary hearing, the respondent argues that it does. We agree with the respondent and the Employment Tribunal (paras. 58 – 59). It is clear that clause 2 provides for dismissal on notice under clause 47 without recourse to the disciplinary procedures set out between those provisions. Those procedures are designed to deal with procedurally unfair dismissal claims, which cannot arise during the first six months of employment. Accordingly, the Employment Tribunal was entitled to strike out this head of claim. The 'Gunton' extension claim does not arise here: see Gunton v Richmond [1980] ICR 755, considered by the Supreme Court in Edwards v Chesterfield [2012] IRLR 129."

The decision of the EAT: costs and rejection of application to adduce fresh evidence

14. In relation to the appeals against the costs order made by the ET, the EAT stated:

"23. Although an order for costs remains an exceptional order in the Employment Tribunal, we remind ourselves that since costs are in the discretion of the Employment Tribunal we can only interfere on appeal where an error of legal principle is made out: Barnsley MBC v Yerrakalva [2012] IRLR 78.

24. In the present case, the Employment Tribunal had a very full opportunity to make a judgment on the claimant's commencement and conduct of these proceedings. Having permissibly found the claims to be misconceived and considering his conduct of the matter, they were entitled, in our judgment, to order that pay the respondent's full costs incurred subject to a detailed assessment. We are unable to see any prospect of the claimant's perversity grounds of appeal succeeding at a full hearing; nor do his bias grounds raise any arguable point of law."

15. In relation to the appeal against the rejection of Mr Scott's application to adduce fresh evidence on appeal, the EAT stated:

"10. The principles on which fresh evidence is admitted for the first time on appeal are well established. The threefold test to be found in Ladd v Marshall [1954] 1 WLR 1489, adopted in this jurisdiction by Popplewell P in Wileman v Minelec Engineering Ltd [1988] ICR 318, is contained in para. 8.2 of the current EAT Practice Direction. First, the evidence could not have been obtained with reasonable diligence for use at the Employment Tribunal hearing; secondly, it is relevant and would probably have had an important influence on the hearing below; and, thirdly, it is apparently credible.

11. The material which the claimant sought to adduce in this way on appeal consisted of (a) local press reports of the PHR hearings held on 11 October and 7 December 2010, and (b) Mrs Scott's of the evidence given on those two occasions.

12. The correspondence between the claimant and the respondent and the EAT is listed in the respondent's costs application. I need not repeat it. Suffice it to say that, in refusing the fresh evidence application, the Registrar made clear, in her letter dated 22 December 2011, that neither the press reports nor Mrs Scott's notes of evidence would have had an important effect on the outcome of the PHR hearing. That is plainly correct. The Employment Judge keeps a note of evidence to which all members of the Tribunal can be referred when considering their determination. Thus, the application failed on the second limb of the Ladd v Marshall test, leaving aside the fact that the first press report and the first set of Mrs Scott's notes could have been referred to at the later PHR hearing held on 7 December 2010.

13. Further, the Registrar went on to point out that where notes of evidence given below were necessary for the determination of the substantive appeal, the proper course was to seek to agree a relevant note under para. 7 Practice Direction. Failing which, an application for the Employment Judge's notes could be made at the preliminary hearing.

14. Rather than follow that route, the claimant stubbornly appealed the Registrar's order. For the principal reason which he gave, that appeal was misconceived. The press reports and Mrs Scott's notes of evidence would have had no influence on the proceedings below. Consequently, I dismiss this appeal and have since dismissed the claimant's review application."

16. The EAT then turned to the costs of the appeal against the Registrar's order. The power of the EAT to award costs is contained in rules 34 and 34A of the Employment Appeal Tribunal Rules 1993, as amended ("the EAT Rules"). Rule 34A provides that a costs order may be made against a party where it appears that any proceedings brought by that party "were unnecessary, improper, vexatious, or misconceived, or that there has been unreasonable conduct in the bringing or conducting of the proceedings". It was common ground before this court that the difference in the wording of the provisions on costs in the ET Procedure Rules and the EAT Rules is not material in the circumstances of this case.
17. The EAT stated that, having found that the appeal was misconceived, it followed that the EAT's discretion to award costs under EAT Rule 34(1), read with rule 34A, was triggered. It stated that it would exercise that discretion in favour of the respondent:

"15. …Although the claimant acts in person, he plainly has considerable litigation experience following his claim against HMRC. He was warned repeatedly by the EAT, and the respondent, that his application under para. 8 Practice Direction was inappropriate, yet he persisted, thereby putting the respondent to the expense of defending a hopeless appeal."

The grounds of Appeal to this Court

18. The original grounds, framed by Mr Scott himself, were wide-ranging. He submitted that the ET had failed to accord him a fair hearing and, in particular, that the procedure adopted, a pre-hearing review, was unfair because it did not give him adequate notice of the case against him, or give him adequate time to prepare his case, and to put it by questioning witnesses and calling evidence. At the core of this ground was the contention that the ET had adopted a procedure in which oral evidence on the substantive claim was given in a wholly unstructured manner at the pre-hearing review. Mr Scott considered that Sir Bob had given demonstrably false evidence at that hearing, including stating that he had checked his diary, and that Mr Scott had been dismissed for acts of gross misconduct committed on either 15 or 16 June 2009. Mr Scott's case was that it is apparent from emails that he was not at work on either of those days. He considered that email evidence showed not only that the alleged misconduct could not have been committed on those days, but that it could not have happened in any event.
19. Mr Scott also maintained that, in the light of his status as a layperson, and the fact that there had been changes in the reasons given by Sir Bob for dismissing him, it could not be said that he had acted "vexatiously, abusively, disruptively or otherwise unreasonably" within Rule 40(3) of the ET Procedure Rules so as to entitle the Tribunal to make a costs order against him.
20. As far as the costs in respect of Mr Scott's appeal against the Registrar's refusal of his application to adduce fresh evidence is concerned, paragraph 10 of the grounds states that the EAT acted unreasonably in denying Mr Scott's "repeated requests to present the evidence of the three PHR hearings and contemporaneous notes of these taken by his wife and the Tribunal members" which, he maintained, were essential to a fair and just hearing of the issues involved in the appeals. His affidavit, dated 6 June 2012, also refers to the costs order, referred to as a "fine", and states, in the last sub-paragraph within paragraph 6, that he was "left with no alternative but to apply to the Court of Appeal". Mr Edwards, on behalf of Mr Scott, invited the court to regard these references as, in effect, raising a ground of appeal and, while Mr Goodfellow, on behalf of the respondent, maintained that no such ground was raised, at the hearing this aspect of the case was fully explored.
21. Nearly all of those grounds, including those seeking to appeal against the EAT's dismissal of his appeal from the ET's decision to strike out Mr Scott's claims, have not been pursued. In his skeleton argument on behalf of Mr Scott, dated 9 January 2013, Mr Edwards stated that, while Mr Scott remains concerned about the ET's acceptance of what was demonstrably false oral evidence by Sir Bob, he had decided not to pursue those aspects of his appeal. Mr Edwards stated that Mr Scott made this decision in the interests of cost-saving and proportionality.
22. From that time, the appeal has solely been against the decision of the ET, upheld by the EAT, to order him to pay the whole of Sir Bob's costs of the proceedings and against the order of the EAT that Mr Scott pay further costs of £2,500 in respect of his appeal against the decision of the Registrar.
23. Mr Edwards' reformulation of the grounds of appeal against the dismissal by the EAT of the appeals against the ET's costs orders and against the costs order made by the EAT is contained in paragraph 9 of his skeleton argument. It is:-

a) The ET erred in law and/or reached a perverse decision in awarding costs against the appellant in respect of his bringing and pursuit of his claim of sex discrimination. That claim could only be dismissed once evidence had been heard from the respondent and a finding made by the ET as to the actual reason for the appellant's dismissal (of the three different reasons asserted by the respondent) and that the appellant's dismissal was not on grounds of his sex. Those findings were only made following the PHR in the ET's decision dated 4 January 2011. The appellant had understandable concerns about the reason for the dismissal given the way in which it was carried out and the different reasons given for the dismissal.

b) The ET erred in law and/or reached a perverse decision in awarding costs against the appellant in respect of his bringing and pursuit of his claim of victimisation (by dismissal) on grounds that he had made a protected disclosure. As above, that claim could only be dismissed after the ET had made factual findings as to whether the appellant had made a protected disclosure, the actual reason for the dismissal – of the various reasons suggested by the respondent – and that the dismissal was not because the appellant had made a protected disclosure.

c) The ET erred in law and/or reached a perverse decision in awarding costs against the appellant, a litigant in person, in respect of his bringing his claim of breach of contract. The claim revolved around a point of contractual construction of considerable complexity that required determination by the ET. It was not unreasonable for the appellant, as a litigant in person, to bring the claim and seek such determination by the ET. This is particularly so given the guidance given in the MPs' fact sheet [on handling disciplinary matters].

d) The ET erred in law and/or reached a perverse decision in ordering the appellant to pay all of the respondent's costs on the basis that he had acted vexatiously and/or unreasonably in conducting the proceedings. The ET made no attempt to attribute any aspect of the wasted costs to its findings as to the appellant's unreasonable conduct and to award only those amounts. Further, the PHR process was entirely under the direction and control of the Employment Judge at all times.

e) The EAT erred in law and/or reached a perverse decision in ordering to pay the assessed sum of £2,500 in respect of his appeal against the decision of the Registrar.

Discussion

24. There are a number of strands to Mr Edwards' submissions about the costs order made by the ET. The first is the well-known inappropriateness, save in rare circumstances, of summarily dismissing discrimination claims and claims based on a protected disclosure, particularly where the central facts are in dispute, and the limited category of case in which it is appropriate for an ET to make a costs order. The second is that, at all material times, Mr Scott was a litigant in person. Mr Edwards submitted that care should be taken before characterising the conduct of such a person as "vexatious, abusive or otherwise unreasonable" within rule 40(2) of the ET Procedure Rules and rule 34A of the EAT Rules. Thirdly, in a case where there are disputed questions of fact it is questionable to seek to resolve them in a hearing by way of pre-hearing review, because the ordinary pre-cursors to a fact finding exercise, disclosure and exchange of statement will either not have taken place or only partly taken place.
25. The result, submitted Mr Edwards, was that, although in this case the ET heard some evidence before reaching its decision, in particular from Sir Bob, at best the hearing could be described as only an "abbreviated" full merits hearing. The case involved a summary dismissal in circumstances in which neither pre-dismissal nor post-dismissal procedures had been carried out and the reasons for Mr Scott's dismissal were not given to him and did not emerge until Sir Bob gave his evidence. In such circumstances, even if the ET did not err in deciding to strike out Mr Scott's claims, it was, Mr Edwards submitted, not open to it to characterise Mr Scott's conduct at times before it made its finding as "vexatious, abusive or otherwise unreasonable" so as to justify making an order for costs against him.
26. There are two principal difficulties with the case Mr Edwards has advanced in respect of the costs order made by the ET. The first is that challenges to costs orders are particularly difficult because they generally involve challenges to the exercise of discretion by judges on a matter on which experienced judges may sensibly differ: see Mummery LJ in Barnsley MBC v Yerrakalva [2011] EWCA Civ 1255 at [6], reported at [2012] ICR 420. Mummery LJ also stated (at [49]) that "orders for costs are based on and reflect broadbrush first instance assessments, and it is not the function of an appeal court to tinker with them". In typically memorable language, he concluded that "legal microscopes and forensic toothpicks are not always the right tools for appellate judging".
27. The second difficulty in maintaining this approach is that there is no longer any challenge to the propriety of the ET striking out Mr Scott's claims. Once it is accepted that there was sufficient factual basis for striking out the claims, it must be taken that rule 18(7)(b) of the ET Procedure Rules have been satisfied and Mr Scott's claims were "scandalous or vexatious" and had no reasonable prospect of success. The argument that, in those circumstances, it was not open to the ET to find that Mr Scott acted vexatiously or otherwise unreasonably in bringing the proceedings within Rule 40(3) of the ET Procedure Rules, faces formidable difficulties.
28. Mr Edwards' fundamental submission is that, absent information from interlocutory processes, witness statements, and at a time before a finding by the ET about the sustainability of his claim, Mr Scott could not reasonably have been aware of how unsustainable it was, and could not therefore be found to have acted vexatiously, abusively, or unreasonably. A submission of this nature may have traction in some circumstances. But it cannot apply to the ET's findings about the failures by Mr Scott to comply with case management directions, and orders made at the pre-hearing review on 7 June about the basis of subsequent hearings. Also, even if some aspects of the breach of contract claim involved complicated questions of law, what the ET focussed on in considering the question of costs were the changes in the facts relied on by Mr Scott to show breach of contract.
29. The submission also cannot apply to a number of the other findings of the ET. These include its findings that Mr Scott did not have any credible evidence for the primary facts asserted, that he did not have a reasonable belief that what he claimed was a protected disclosure was in fact protected, and that at the outset he knew in substance what Sir Bob's case was as to an incident involving him and Ms Beedell although the language of the first letter was oblique. It also cannot apply to the finding that Mr Scott pursued his claim to circumvent the one year bar on bringing an unfair dismissal claim.
30. Quite apart from those points, Mr Edwards' submission appears inconsistent with the definition of "vexatious" by Lord Bingham LCJ in AG v Barker [2000] 1 FLR 759 at [19]. Lord Bingham stated:

"[T]he hallmark of a vexatious proceeding is … that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process." (emphasis added)

31. As far as the costs order made by the ET is concerned, it is important to stand back and look at the totality of the relevant circumstances. The ET identified the particular unreasonable conduct and it's effect, and it set out its reasons clearly. This court has said that employment tribunals are entitled to take a broad approach on questions of costs. The submissions made in this appeal invited this court to require an approach which previous decisions of this court have characterised as over-analytic and unnecessary. To accept them would be quite inconsistent with the recent authorities: apart from Yerrakalva's case to which I have referred, see Sud v Ealing LBC [2013] EWCA Civ 949 at [70] -[71]. In Sud v Ealing LBC Fulford LJ stated that where the basis of a costs order is clearly specified by the ET, it is not necessary for it to analyse each component of the conduct or to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. To do this risks the ET losing sight of the totality of the relevant circumstances. To require it to be done in particular circumstances (for example where a costs order is made after a pre hearing review) is to undermine this court's encouragement to employment tribunals to take a broad brush approach.
32. The invitation to require what can be characterised as inappropriate over-analysis pervades the submissions made on behalf of the application but is most clearly shown in the perversity ground in paragraph 9(d) of Mr Edwards' skeleton argument (set out at [20(d)] above). It was there submitted that the ET's decision was perverse because (i) it made no attempt to attribute any aspect of the wasted costs to its findings as to the appellant's unreasonable conduct and to award only those amounts, and (ii) the process was under the direction and control of the Employment Judge at all times and he should have prevented the addicting of any irrelevant or repetitious evidence. This is just the sort of exercise which this court in Yerrakalva's case and other cases has stated is not required.
33. I turn to the costs order made by the EAT in respect of the appeal against the Registrar's refusal of permission to adduce further evidence for his appeals. At first sight it might be difficult to characterise the conduct of a litigant in person who has lost at first instance and seeks to adduce additional evidence for the appeal as "vexatious" and "unreasonable conduct".
34. In the present case, however, the Registrar had directed Mr Scott to the relevant provision in the Practice Directions and to the procedure to be used (under paragraph 7 of the Practice Direction) where a note of the evidence in the ET is required for the proper determination of the appeal. Mr Scott did not, in the light of this, either seek to agree a relevant note or apply for the production of the ET judge's notes. He also adopted a somewhat broad-brush approach to the paragraph 8 requirements. I leave aside the fact that the newspaper article and Mrs Scott's notes of the later meeting could not have affected the outcome of the pre hearing review, and that Mr Scott did not apply to adduce further evidence until some 10 months after his notice of appeal. I do not, however, consider that the members of the EAT arguably erred in concluding that the appeal against the Registrar's decision was "misconceived". I also consider that the EAT was entitled to conclude that, for Mr Scott to persist with the appeal against the Registrar's decision after being advised by the EAT that his application under paragraph 8 of the Practice Direction was inappropriate and told of the appropriate procedure under paragraph 7, was unreasonable and vexatious. It was thus conduct that sufficed to justify an order that he pay the costs incurred by the Respondent in defending what was a misconceived and hopeless appeal.
35. The EAT was exercising its broad discretion on costs. It sufficiently identified the relevant unreasonable conduct and its effect, and there is no ground for interfering with what was without doubt an appropriate "broad brush" assessment by an appellate tribunal considering the conduct of an appeal to it.
36. For these reasons, I would not grant permission in respect of either the costs orders made by the ET or that made by the EAT. This application is refused.

Lord Justice McFarlane:

37. I agree.

Lord Justice Laws:

38. I also agree.

Note 1    See Employment Rights Act 1996, section 108(1).    [Back]