England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st October 2014

Mr Justice Foskett:

Introduction

1. The First Appellant and I had met in other litigation a few years ago and I called him "Mr Kinsley" in that litigation. He agreed that I could continue in that fashion on this occasion. The Second Appellant (Ms Hara) is Mr Kinsley's wife.
2. As will emerge from the description of events below, Mr Kinsley is currently in prison and appeared before me in person having been brought to court by the prison authorities. He presented his argument with conviction and passion and in an articulate and courteous, albeit on occasions repetitious, manner. The bundles were well-prepared. Unfortunately, his submissions, both oral and written, are replete with accusations of conspiracy, dishonesty, unfair dealing and bias on the part of many with whom he has had contact, including some members of the judiciary. Presenting things in that manner runs the significant risk of obscuring a good, or at least an arguable, point and alienating a tribunal simply trying to do its job of ensuring a fair hearing for every party. Whilst I may well be accused of ignoring many of his arguments, I propose to focus only on those that seem at face value to have something in them.
3. This is an appeal by both Appellants to the High Court from an Employment Tribunal brought as of right pursuant to CPR Part 52.19(1). As parties to proceedings before the Employment Tribunal in a matter that was not of an employment nature (as will appear below, it related to prohibition notices issued under the Health and Safety at Work Act 1974), they may appeal to the High Court if they are "dissatisfied in point of law with the decision of the tribunal." The statutory foundation for the jurisdiction of the High Court is section 11 of the Tribunals and Inquiries Act 1992.

Background

4. In 2008 Ms Hara became the registered proprietor of a property known as Parkeston House, Adelaide Street, Harwich. It appears that the beneficial owner of the property (and probably thus the provider of the resources to purchase it) was her father. It was, or at least had been, an office block. Following a lengthy planning process in which Mr Kinsley and Ms Hara were the applicants for permission, permission was eventually given to convert the property into flats. The works undertaken during 2013 to achieve that objective form the backdrop to the current proceedings.
5. Following complaints by local residents, the Respondent investigated the situation through the attendance at the premises on a number of occasions by various inspectors who formed the view that the works were being carried out in a dangerous fashion. As a result, certain prohibition notices concerning the work to which I will refer shortly were served. Some of those notices were served on Mr Kinsley and some on Ms Hara. The case for the Respondent is that they both, but Mr Kinsley in particular, ignored those notices and in due course criminal proceedings were taken against Mr Kinsley for failing to comply with those notices.
6. There was a two week trial in Chelmsford Crown Court in June this year following which Mr Kinsley was convicted of five offences under the 1974 Act, three of which arose from his failure to observe the prohibition notices particularised on the indictment. On 18 July he was sentenced by Her Honour Judge Peters to a total of 30 months imprisonment. The trial judge characterised the offences as extremely serious. Mr Kinsley is seeking permission to appeal against his convictions and/or sentence and I wish to make it plain that nothing I say in dealing with the appeals before me can, or is intended to, have any impact on the criminal appellate process. I have not seen anything other than the sentencing remarks of the judge and, although Mr Stoton has provided me with the respondent's notice in the criminal appeal proceedings, it has not seemed appropriate for me to take any account of its contents. Not unnaturally, there could well be an overlap between the issues that fall for consideration in the present appeal and those potentially arising in the criminal proceedings depending, of course, on the way in which the prosecution case was presented and responded to in the Crown Court. Nonetheless, as I say, whilst Mr Kinsley would, I think, regard the two sets of proceedings as closely related, I do not for my part see that necessarily to be so. I must make my decision on the issues and arguments that have been raised before me supplemented, because Mr Kinsley appeared in person, by such additional research as I have been able to undertake.
7. As will be apparent from that observation, it would, of course, have been of assistance to me to have some more measured submissions, based upon an understanding and experience of the operation of the 1974 Act, concerning the issue that I will address below than those advanced by Mr Kinsley. However, he is entitled to advance his case as a litigant in person (and he may have no option but to do so) and I must endeavour to find the correct answer without that more helpful kind of assistance.
8. Putting the matter very broadly, it was Mr Kinsley's response to the concerns raised by the Respondent that the works to the property were being carried out by independent contractors, Demita Limited, and that if any party needed to be served with a prohibition notice, it was that company, or perhaps Mr Hara as the person ultimately responsible for the works being carried out there because he was the beneficial owner of the property. I should say that Demita Limited was a company run by two brothers whose surname was Bednerchuk.
9. Where someone is served with a prohibition notice, the right to challenge the need for, or the propriety of, such a notice can be exercised by way of an appeal to an employment tribunal and "on such an appeal the tribunal may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the tribunal may in the circumstances think fit" (section 24(2) of the 1974 Act). That is what Mr Kinsley, and indeed Ms Hara, did in respect of the prohibition notices served upon them. In short, their appeals were unsuccessful and, in the interim stages of those proceedings, Mr Kinsley was ordered to pay certain costs. As I have indicated, there is a right of appeal to the High Court on a point of law and Mr Kinsley seeks to invoke that right in the proceedings before me. Perhaps not surprisingly, he thought, and others advised him initially, that his right of appeal was to the Employment Appeal Tribunal, but it emerged that this was incorrect and that the High Court was the correct destination for any such appeal. It was not his fault that he started the appeal process in the wrong court.
10. The employment tribunal that made the substantive decision from which he appeals was presided over by Employment Judge Goodrich. The case was heard over two days on 23 January 2014 and 3 February 2014 and the written decision was dated 31 March 2014. It dismissed the appeals and affirmed the prohibition notices. I will refer to the notices shortly.
11. At an interim stage, prior to the substantive appeal, an employment tribunal presided over by Employment Judge Tobin ordered Mr Kinsley to pay a little over £4,300 in costs in relation to costs considered to have been incurred unnecessarily because of Mr Kinsley's non-compliance with orders in the run up to the hearings on 5 September 2013 and also on 14 November 2013. I will return to that having considered first the appeal against the substantive decision.
12. Since the primary argument advanced by Mr Kinsley is that the prohibition notices were invalid, the relevant terms of each notice should be noted. Before doing so it would be appropriate to note the provision under the 1974 Act which provides the basis upon which a prohibition notice may be issued.

The statutory provisions and the prohibition notices

13. The relevant provision concerning prohibition notices is section 22:

"(1) This section applies to any activities which are being or are likely to be carried on by or under the control of any person, being activities to or in relation to which any of the relevant statutory provisions apply or will, if the activities are so carried on, apply.

(2) If as regards any activities to which this section applies an inspector is of the opinion that, as carried on or likely to be carried on by or under the control of the person in question, the activities involve or, as the case may be, will involve a risk of serious personal injury, the inspector may serve on that person a notice (in this Part referred to as "a prohibition notice").

(3) A prohibition notice shall—

(a) state that the inspector is of the said opinion;

(b) specify the matters which in his opinion give or, as the case may be, will give rise to the said risk;

(c) where in his opinion any of those matters involves or, as the case may be, will involve a contravention of any of the relevant statutory provisions, state that he is of that opinion, specify the provision or provisions as to which he is of that opinion, and give particulars of the reasons why he is of that opinion; and

(d) direct that the activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served unless the matters specified in the notice in pursuance of paragraph (b) above and any associated contraventions of provisions so specified in pursuance of paragraph (c) above have been remedied.

(4) A direction contained in a prohibition notice in pursuance of subsection (3)(d) above shall take effect—

(a) at the end of the period specified in the notice; or

(b) if the notice so declares, immediately."

14. The expression "relevant statutory provisions" in Part 1 of the Act (where section 22 is found) means –

"(a) the provisions of this Part and of any health and safety regulations; and

(b) the existing statutory provisions …."

15. Each prohibition notice, whether directed to Mr Kinsley or Ms Hara, identified an activity being carried out on or in the premises (either generally in terms of "work on the whole construction site" or more specifically in relation, for example, to electrical wiring) which the inspector asserted involved "a risk of serious personal injury", the relevant activity or activities "being carried out under your control" at the premises. Each notice then went on to assert that the activities identified involved contravention of certain identified statutory provisions. Of those provisions sections 2(1) and 3(1) (or simply "sections 2 and 3") of the 1974 Act always appeared in each notice as one set of statutory provisions and in some cases a specific regulation (e.g. the Work at Height Regulations 2005, Regulation 6(3)) was referred to. Given the nature of the challenge made by Mr Kinsley in these proceedings, it should be noted that no reference was made in that part of the notice to section 4 of the Act.
16. The nature of the duties owed (and by whom) arising from sections 2, 3 and 4 of the Act can be seen from the provisions of those sections:

"2 General duties of employers to their employees.E+W+S+N.I.

(1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees ….

…

3 General duties of employers and self-employed to persons other than their employees.E+W+S+N.I.

(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

(2) It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.

(3) In such cases as may be prescribed, it shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety.

4 General duties of persons concerned with premises to persons other than their employees.E+W+S+N.I.

(1) This section has effect for imposing on persons duties in relation to those who—

(a) are not their employees; but

(b) use non-domestic premises made available to them as a place of work or as a place where they may use plant or substances provided for their use there,

and applies to premises so made available and other non-domestic premises used in connection with them.

(2) It shall be the duty of each person who has, to any extent, control of premises to which this section applies or of the means of access thereto or egress therefrom or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access thereto or egress therefrom available for use by persons using the premises, and any plant or substance in the premises or, as the case may be, provided for use there, is or are safe and without risks to health.

(3) Where a person has, by virtue of any contract or tenancy, an obligation of any extent in relation to—

(a) the maintenance or repair of any premises to which this section applies or any means of access thereto or egress therefrom; or

(b) the safety of or the absence of risks to health arising from plant or substances in any such premises;

that person shall be treated, for the purposes of subsection (2) above, as being a person who has control of the matters to which his obligation extends.

(4) Any reference in this section to a person having control of any premises or matter is a reference to a person having control of the premises or matter in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not)."

17. The effect of those sections was described by the House of Lords in Austin Rover Group Ltd. Respondents v Her Majesty's Inspector of Factories [1990] 1 AC 619. Lord Jauncey of Tullichettle, with whom a majority of their Lordships agreed specifically, said this:

"Sections 2 and 3 impose duties in relation to safety on a single person, whether an individual or a corporation, who is in a position to exercise complete control over the matters to which the duties extend. An employer can control the conditions of work of his employees and the manner in which he conducts his undertaking. However, section 4, which imposes duties in relation to the safety of premises and plant and substances therein, recognises that more than one person may have a degree of control of those premises at any one time and hence be under a duty in relation thereto. The words 'to any extent' and 'to take such measures as it is reasonable for a person in his position to take' ('the middle words') point to the distinction between the unified control contemplated in sections 2 and 3 and the possible divided control contemplated in section 4.

…

The ambit of section 4 is far wider than that of sections 2 and 3. It applies to anyone who is in occupation of non-domestic premises and who calls in tradesmen to carry out repairs, it applies to those tradesmen in relation to the employees of others, and it applies to anyone who makes the premises available on a temporary basis for others to carry out work in. Thus organisations varying from multi-national corporations to the village shop are brought under the umbrella of the section. In the example of the warehouse to which I have already referred, it would be contrary to common sense and justice that A should be prosecuted if B had acted contrary to his instructions and without his knowledge. Indeed, if A were to be guilty of an offence in such circumstances, criminal liability would arise solely ex dominio. I do not consider that such a result was intended by Parliament, particularly in a provision capable of such broad application. In my view, it was to deal with such a situation as I have exemplified that the middle words were included in section 4(2). These words require consideration to be given not only to the extent to which the individual in question has control of the premises, but also to his knowledge and reasonable foresight at all material times. Thus when a person makes available premises for use by another, the reasonableness of the measures which he requires to take to ensure the safety of those premises must be determined in the light of his knowledge of the anticipated use for which the premises have been made available and of the extent of his control and knowledge, if any, of the actual use thereafter. If premises are not a reasonably foreseeable cause of danger to anyone acting in a way in which a human being may be reasonably expected to act in circumstances which may reasonably be expected to occur during the carrying out of the work or the use of the plant or substance for the purpose of which the premises were made available, I think that it would not be reasonable to require an individual to take further measures against unknown and unexpected events towards their safety. Applying this test to the warehouse example A would escape liability under section 4(2) because it would not be reasonable for him to take further measures against B's unauthorised use, whereas B would incur liability because he must have foreseen the consequences of his overloading." (Emphasis added: see paragraph 21 below.)

18. Whilst Mr Kinsley develops his argument with a somewhat different emphasis from the analysis that appears below, the fundamental distinction to be derived from the statute is "the unified control" contemplated in sections 2 and 3 and the "possible divided control" contemplated in section 4. Mr Kinsley's essential argument is that, whilst sections 2 and 3 were referred to specifically in each prohibition notice (and section 4 was not), the Employment Tribunal focused on whether "divided control" could be established when deciding whether the dangerous activities were carried out "under the control of" him and his wife whereas the basis upon which the notices were issued was that he and his wife had "unified control" of the work.
19. Is Mr Kinsley correct that the focus of the employment tribunal's analysis was upon whether the test in section 4 applied? It is necessary to see how the tribunal directed itself in relation to the necessary test.
20. Mr Stoton had supplied the tribunal with written submissions and the tribunal referred to those submissions as follows:

"Mr Stoton had provided typed submissions as to the relevant legal principles. In response, Mr Mannan [then representing the Appellants] commented that nothing in the submissions troubled him although his were that, on the application of those legal principles, the Appellants' appeals should succeed. We are content, therefore, to adopt the statement of relevant law set out by him."

21. The tribunal then set out the terms of section 4(2), an extract from the Austin Rover Group case comprising the three sentences underlined in the extract from the speech of Lord Jauncey of Tullichettle in that case set out in paragraph 17 above and, finally, section 22(1) and (2). The tribunal recorded the various submissions made, the first being made on behalf of the Appellants by Mr Charles Mannan being that they "did not have the control of the relevant premises required under section 4(2)". Mr Stoton's submissions of law are not recorded in detail.
22. It would certainly seem from those extracts from the tribunal's decision that section 4(2) was the focus of its consideration. The following extract from the balance of the tribunal's reasoning confirms that to be so, in my judgment:

"64. As to the second issue, the issue as to control, we find and conclude, for the reasons given in our findings of fact, that the Appellants had the necessary control in order for the notices to have been appropriately served.

65. The Austin Rover case … makes clear that more than one may have a degree of control of relevant premises, or of a relevant plant or substance.

66. We have no hesitation in concluding that Mr Kinsley had the necessary control. He, not Demita Ltd or his father-in-law, had the greatest degree of control over the work being carried out. For example, he engaged the work to be carried out and was also seen apparently doing building work and directing the work of others himself. The workforce directed Mr Elven [one of the inspectors] to Mr Kinsley as "the boss" rather than the directors of Demita Ltd. Mr Bednerchuk himself, a director of Demita Ltd at the time, told Mr Elven that Mr Kinsley was in charge. It was Mr Kinsley who told Tendering District Council and the Respondent, that the work would continue, regardless of any interventions they might make. He was aware of what work was being carried out, he was ordering the work and was viewed by those engaged to carry out the work, as being "the boss". It was he, rather than Demita Ltd or his father-in-law, who had the main control over the work being carried out on the premises.

67. We are satisfied, although with more hesitation, for the reasons given in our findings of fact, that Ms Hara had the necessary control so as to be served with a prohibition notice. As stated above, more than one person may be served with a prohibition notice. Ms Hara was the registered owner of the property. She, together with … Mr Kinsley had made the application for planning permission to convert the premises; and wrote to Tendering District Council about issues that arose in the course of the planning process. It is implicit in her statement in her grounds of appeal that there was no genuine health and safety issue on the site that she felt able to express an opinion to that effect. As the owner of the site, we consider that she also had the ability to decide what work should be carried out on the site, or not carried out, or to ensure that someone that would be accepted as competent by the Respondent as competent was appointed to have control over the worker to be carried out."

23. Mr Stoton says that his reference to section 4 in his written submissions was designed to offer the tribunal some guidance on the meaning of "control". It was not intended to be acted on by the tribunal as the test for determining the issue of control. Whilst that may have been his intention, I do not think that a fair analysis of the approach of the tribunal shows that to have been its approach. As the passages of its reasoning highlighted above demonstrate, the tribunal undoubtedly focused on whether each Appellant had some measure of control, rather than whether, for example, both of them had joint sole control of what happened on site. The difference in practical terms may be slight, but there is a difference.
24. Since much of the hearing before me (which lasted at least 3 hours) was focused on Mr Kinsley's complaints, there was little attention paid to the position of Ms Hara, but I have questioned, having reviewed the position subsequently, whether section 4 was seen as a way of validating the prohibition notices against her. Equally, of course, it could be seen as a way of bringing home the case for the notices against Mr Kinsley when it was (understandably) not clear to the inspectors precisely what his status was in relation to those working in the building. I did not raise this with Mr Stoton and it may be that there was an answer to it. I will return to Ms Hara's position below.
25. At all events, as I have said, the tribunal undoubtedly addressed the question of the validity of the notices on the basis of whether each Appellant had "some degree of control" over the works. Given that this was not the basis upon which each notice was formulated (the basis being the "sole control" to be found in sections 2 and 3), in my judgment, this was a misdirection on the issue they had to determine. They had to decide (on the assumption that the notices had to comply strictly with section 22 to be valid) whether each Appellant could be said to be in sole control of the site which, in my view, would require a finding of joint sole control rather than a finding that each had a measure (or some degree) of control over the operations being carried out on site.
26. Having thus decided that the tribunal erred in law, the question arises as to whether I must remit the case to the tribunal to reconsider the position. I have not had drawn to my attention (nor have I discovered) any authority that determines the practice in this particular context. However, there is some guidance in the general context of employment tribunals that informs the issue. In Burrell v Micheldever Tyre Services Ltd [2014] ICR 935 the Court of Appeal confirmed that the Employment Appeal Tribunal was required to remit a case to the employment tribunal where it detected an error of law by the employment tribunal "unless the error was immaterial or the appeal tribunal was able to conclude what the result would have been, without the error, based on the factual findings of the employment tribunal …." I am not, of course, sitting as an Employment Appeal Tribunal, but my jurisdiction is essentially the same in the sense that I have to decide whether an error of law has been made.
27. The issue, therefore, is whether the employment tribunal, if it had approached the issue correctly, would have come to the same conclusion on the factual findings made.
28. In this respect, I consider there is a distinction between Mr Kinsley's case and that of Ms Hara. The tribunal had referred to its findings of fact in paragraph 64 of its conclusions. In relation to Ms Hara, those findings were fully summarised in paragraph 67 of its conclusions (see paragraph 22 above). In relation to Mr Kinsley, it made additional findings over and above those summarised in paragraph 66 of its decision (again, see paragraph 22 above) which it is necessary to record:

"By letter dated 18 February 2013 (very shortly before Mr Elven's first visit to Parkeston House) Mr Kinsley wrote to Tendering District Council's planning department. Included in that letter was a statement "work on the site has not stopped and will not stop until completion under any circumstances." This is a statement of someone who has control over building work being carried out on a site.

…

On the inspector's other visits between 28 February and 9 May 2013 neither Mr Bednerchuck, nor other members of the workforce present gave anyone other than Mr Kinsley as being in charge. Various individuals referred to Mr Kinsley as "boss".

This information is also consistent with visual evidence provided to the tribunal, showing … Mr Kinsley apparently carrying out building work on the site himself; and directing members of the workforce.

On one of his visits, Mr Elvin met individuals who appear to have been sleeping in the premises. They told him that they had been told to sleep on the site by Mr Kinsley.

On other occasions in the course of objecting to the interventions being made by the Respondent, Mr Kinsley made clear that the building work would carry on, regardless of their interventions. This, again, was strongly indicative of someone who had the control to require building work to continue, or to cease.

…

During the course of the four visits of Mr Elven, accompanied on some occasions by Mr Elliss, Mr Kinsley did not refer to Demita Ltd being in control of the building works. The first information given to them to that effect was, at the earliest, in May 2013. When the Respondent made attempts to follow up what involvement they had, based on what Mr Kinsley stated to be a contract for them to do building work, their enquiries were not responded to.

The tribunal was provided with evidence of building materials having been ordered by Mr Kinsley and addressed to him.

The copy of what was asserted by Mr Kinsley to be a building contract between him and Demita Ltd was unconvincing. In that contract the developer was described as being Mr J Hara, c/o Mr E Kinsley and Mr Kinsley being the agent. The contract was, however, only stated to be for one flat on the ground floor. The building contract was not in any of the standard forms common in the building industry, such as JCT contract and so on."

29. Those findings were supported by the evidence before the tribunal which it accepted. In my judgment, had the tribunal asked itself the question of whether the totality of the findings of fact justified the conclusion that Mr Kinsley was in sole control of the site, the answer would plainly have been "yes". There was no evidence that any other party seen present on the site was exercising any degree of control over the operations as a whole. In my view, the tribunal could readily have affirmed the notices served on Mr Kinsley on this ground. No argument was addressed by Mr Stoton on the basis that the tribunal could have affirmed the notices having modified them to include reference to section 4(2), but that seems a possibility albeit one which would involve ascribing to an inspector a belief that the inspector did not originally record. I would not, therefore, wish to conclude (without the benefit of further argument) whether that would have been a legitimate way of "rescuing" the notices against Mr Kinsley if section 4(2) had indeed been the "relevant statutory provision" under which his duties on the site were believed to have arisen. However, for my part, I cannot see why a prohibition notice might not originally have included reference to section 4(2) as a possible alternative to sections 2(1) and 3(1) when, as in a case like this, the legal relationship between the person obviously controlling the site and those working upon it is unclear.
30. At all events, so far as Mr Kinsley is concerned, whilst he was entitled to argue before me that the tribunal misdirected itself (and indeed for the reasons I have given was correct so to argue), I do not consider that there is any need to remit the matter because the findings of fact supported overwhelmingly the conclusion that he was in sole control of the site at the material time.
31. What about the position of Ms Hara? The tribunal reached its decision in relation to the notices served on her with "more hesitation". I am bound to say that I do not consider that the findings of fact made in her case (both intrinsically and in the light of the findings of fact made in Mr Kinsley's case to which I have referred) support the conclusion that she had any control over the operations on site. There is no finding that she was ever at the site physically at any material time or that she ever issued a direction, whether written or otherwise, in relation to the works being carried out. Given her husband's close involvement, this would have been very unlikely. Her involvement in the planning process was far removed from the day to day control of building operations carried out subsequently and mere legal ownership in the circumstances of this case does not connote daily control of the site operations. There was, in my view, no evidential basis at all for concluding that she was in joint sole control of the site and equally, in reality, no basis for concluding that she had "some degree of control": her relationship with the activities on site was, as I have indicated, far too tenuous for any such conclusion to be reached.
32. Whilst the employment tribunal's decision was made before the criminal trial of Mr Kinsley, it is to be noted that the Respondent did not seek to prosecute Ms Hara for ignoring the prohibition notices.
33. At all events, I consider that the employment tribunal fell into error in affirming the notices in her case and I would allow her appeal. There is no basis for remitting the case to the tribunal.
34. I should say that, so far as I am concerned, no other error or arguable error was made by the employment tribunal dealing with the substantive case. The mere recitation of the background to the costs issue (see paragraphs 35-41 below) in its own decision demonstrates no actual or apparent bias on the part of the tribunal and the decision not to take account of Mr Kinsley's written submissions sent to the tribunal after the closing arguments had been made (including those made by Mr Mannan on Mr Kinsley's behalf) was a decision which the tribunal was perfectly entitled to make. I have myself declined to consider some lengthy further submissions sent direct to me by Mr Kinsley after the hearing before me.

The costs issue

35. I have referred to the background to this issue in paragraph 11 above.
36. The hearing of the Appellants' appeal had originally been listed for 5 and 6 September 2013 following a preliminary hearing before Employment Judge Prichard on 12 August at which the issues were identified. At a very late stage, the tribunal decided to shorten the hearing to a one-day hearing. This was said to be occasioned by "the restricted availability of judicial resources". It was apparently the view of both sides that one day would not be sufficient and, one is bound to say, it was unfortunate that the tribunal should have felt forced to proceed in this way. However, be that as it may, it was open to the tribunal, acting judicially, to make case management decisions like this provided that ultimately no injustice was done. Doubtless the tribunal, if it had become apparent that one day was not sufficient, would have adjourned the hearing part heard and would have found another day to complete it.
37. Unfortunately, Mr Kinsley, who was represented by Mr Mannan on 5 September, was late for the hearing (his reason being that he thought the hearing would be adjourned because it had been agreed that one day was insufficient) and it emerged that he had not complied with various directions made by Employment Judge Prichard. The tribunal decided (before Mr Kinsley arrived) that, having failed to comply with the directions, he had been "disruptive" and had been guilty of unreasonable conduct, matters relevant to the exercise of the jurisdiction conferred by r. 76 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 relating to costs. The decision was made that he should pay the Respondent's costs of that day thrown away as a result. Mr Mannan apparently argued that Mr Kinsley had little money with which to pay a costs order and the tribunal was initially minded to accept this was so. However, Mr Stoton invited the tribunal to investigate that matter further and the issue was put over for consideration to be given to Mr Kinsley's means about which he was required to submit evidence.
38. It appears that the tribunal was minded to remain the tribunal for the substantive hearing, but Mr Kinsley objected on the basis that the tribunal would be biased against him because of the decision made that day. The tribunal did eventually decide to recuse itself, but still had the issue of costs to deal with which was in due course listed for hearing on 14 November.
39. Mr Kinsley appeared in person on that occasion. The tribunal's decision records what the tribunal considered to be his intemperate and disruptive behaviour, including shouting at the employment judge. After a while the tribunal ordered his removal from the hearing and it continued without him. He had not put in evidence concerning his financial position and, having reviewed the claim for costs made by the Respondent, the tribunal ordered Mr Kinsley to pay £3066 in respect of the costs of the hearing on 5 September and £1326 in respect of the costs of the hearing on 14 November.
40. Mr Kinsley's witness statement of 14 February 2014 challenges the foregoing version of what took place both on 5 September and 14 September. He suggests that Employment Judge Tobin adopted an "unnecessarily heavy handed approach and showed unjustified anger" towards him on 5 September. He also challenges the suggestion that he shouted at Employment Judge Tobin (suggesting that he was simply "firm" in his submissions) or that he was removed by the security guards (suggesting that he left voluntarily) on 14 November. A note prepared by the Respondent's solicitor of what took place at that hearing (and which I understand was submitted to the employment judge later) is in the papers before me. Sadly, it confirms substantially the tribunal's own record of the hearing and it has a resonance with the sentencing hearing conducted by the Crown Court judge. Unfortunately, Mr Kinsley, who can be very courteous and calm for much of the time, can lose control on occasions, particularly if he sees the hearing going against him. However, all that is irrelevant to the question of whether the tribunal was entitled to order costs on each of the two occasions to which I have referred. The tribunal directed itself that his behaviour was irrelevant to the question of whether it should order the payment of costs.
41. I have already alluded to what I perceive to have been the unfortunate decision concerning the time allotted to the first hearing, but I do not think that the consequences of that decision can really affect the decision made concerning the costs thrown away. There was nothing wrong in principle in making an order against Mr Kinsley given the background of non-compliance with orders previously made and I have no basis for saying that the assessment of the quantum of the costs was unfair or incorrectly carried out. I could only interfere if the decision was beyond the kind of decision that any reasonable tribunal could make. Had I been persuaded, for example, that Mr Kinsley was ordered to pay costs that were not "thrown away" (but were costs that would have been incurred in any event), I might have had occasion to interfere. However, there is nothing before me that could lead to that conclusion and equally nothing before me to question the decision made on 14 November. Mr Kinsley would undoubtedly say that the tribunal on that occasion was biased. Making the kind of accusations he does make from time to time will always make it difficult for any tribunal, at whatever level, to entertain his submissions with much favour. But the tribunal did have ample justification for making the order it made and, as I have indicated, it reminded itself that it should ignore Mr Kinsley's behaviour when deciding whether to make such an order. I have no reason to think that the tribunal disobeyed its own self-direction in this regard and there is nothing in the material I have seen to suggest that there was any actual bias in the approach of the tribunal. Equally, there is nothing to justify finding of apparent bias: taking a firm line in the face of perceived contemptuous behaviour by a litigant cannot be any grounds for a fair-minded observer to conclude that the tribunal was biased.

Conclusion

42. The net effect of my conclusions in this appeal is that Mr Kinsley's appeals are dismissed, but the appeal made by or on behalf of Ms Hara is allowed.