United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS C SPIRE (of Counsel) Instructed by: Messrs Levenes Solicitors Grove House 140-142 The Grove Stratford London E15 1NS
For the Respondents	MR MARTYN WEST Representative Peninsular Business Services Ltd Riverside New Bailey Street Manchester M3 5PB


 


MR COMMISSIONER HOWELL QC

1. This is an appeal by the Applicant Ms Alison Walton against the Decision of the London Central Employment Tribunal sitting on 3 and 4 October 2000, rejecting her complaints of sex discrimination and unfair constructive dismissal against her former employer, a company called Image Creative Ltd, and one of its directors Mr Rowan Bayliss, for reasons explained in the Tribunal's Extended Statement of Reasons sent to the parties on 17 October 2000.
2. Image Creative at the material time was a small video editing business operating from premises in Soho. It consisted of the two shareholders and directors, Mr Tim Sparks and Mr Bayliss, with the applicant as its only employee apart from them, though two other people were permitted to work in its premises and operate from there as producers on a freelance basis. The applicant was a 24 year old graduate in film studies, who was anxious to get into the media business as a video and film editor. Her previous practical experience of this consisted of a period of unpaid work experience at London Weekend Television where she had worked on "linear" editing, and the reason she came to the Respondents was that she wanted to get experience and training on the more sophisticated digital "non-linear" equipment and techniques that they used. She was introduced to them through a mutual acquaintance from the Ravensbourne Technical College.
3. From 18 May 1998 she was taken on as a junior employee of Image Creative at a starting salary of £8,000 per annum under a verbal arrangement, as what was at various points described as an edit assistant, or assistant/junior editor. She continued to work for them from then until mid July 1999, when she was signed off sicka by her own doctor for stress-related illness. After that, apart from an attempted return to work during one week in August, she remained away from work drawing statutory sick pay from the Respondents until the end of her employment early the following year. She wrote letters to Mr Sparks in September and November 1999 setting out various complaints and grievances about the way she had been treated, and blaming the Respondents for her illness. When these were not resolved to her satisfaction, she wrote on 11 January 2000 resigning her position.
4. Her Originating Application was presented to the Tribunal just under three months later, on 7 April 2000. It complained of sex discrimination, and continuing breaches of contract on the part of the Respondents in failing to deal with her complaints adequately, such that her resignation amounted to unfair constructive dismissal. She claimed financial compensation on both counts.
5. As the Tribunal recorded (and was plain beyond argument), they were faced with some fairly fundamental conflicts in the evidence. These focused in particular on the different perceptions urged on them by the two sides as to what really had gone on in relation to the Applicant's employment, and generally during the period she had been working at Image Creative. Ms Walton urged on them a picture of continued mistreatment and harassment of an enthusiastic young girl, who instead of the training and career advancement she had been led to expect found herself demeaned, undermined and forced to do nothing but menial tasks. The Respondents on the other hand said that she had been well treated, although as the most junior employee she must have expected to do her share of the running about as is common in this industry; she had been given all the opportunities she could have expected for training and practice on their equipment. The personal relationships in the office had been informal and good, with a lot of sometimes lighthearted talk of the kind normal for creative people, in which she had taken part. They had been genuinely surprised at her accusations of harassment and discrimination, which had only begun to surface after she had become ill. When she had raised any concerns, these had been dealt with carefully and reasonably by Mr Sparks.
6. The factual disputes over the applicant's status and treatment during her employment focused in particular on six issues, all of which the Tribunal addressed:

(1) what was the job she was taken on to do, and what was the nature and extent of the training she was to be given;

(2) whether she was forced to work in intolerable working conditions, made to do cleaning work and other menial tasks for everybody else, and even forced to carry out redecorating and building work when the firm moved its premises from Poland Street to Newburg Street;

(3) whether Mr Bayliss harassed her by making a vulgar remark about "tits" in April 1999, and whether Mr Sparks then wrongly failed to take action about it;

(4) whether Mr Bayliss wrongly excluded her from an opportunity of training on some new editing software called "Avid" when it was first being installed in May 1999;

(5) whether Mr Bayliss deliberately destroyed her work in mid June 1999, when he deleted some material from "Citizen Kane" on which he had been working and she had been practising;

(6) whether Mr Bayliss had made another vulgar remark about "knickers" in late June 1999, in such a way that the applicant felt (in her own word) belittled, and whether it had been agreed between her and Mr Sparks (to whom she complained shortly afterwards) that he would monitor the situation rather than confronting Mr Bayliss about it directly.

7. Having heard the evidence of Ms Walton, Mr Sparks and Mr Bayliss over two days of hearings, the Tribunal found as a fact that Mr Bayliss had actually made the second of the offensive remarks complained of, despite his denial of having done so. But with that exception, they preferred the evidence of the Respondents to that of Ms Walton on every factual issue. They concluded that it was her own perceptions of her status within this small organisation, and of the treatment she had received in it, that had been unrealistic and wrong.
8. Dealing with the specific issues about what she was employed to do, her working conditions and training they said:

"19… We were, however, clear that the Applicant was asked to work for the Respondents as a runner/assistant editor with the expectation that she learn the editing job whilst there, using the opportunity to practise on the equipment when it was free and to use the skills of the two Respondents' witnesses to explain matters to her and to expand her knowledge but not to give her formal training.

20 We were also clear from the evidence that the Applicant had an unrealistic expectation of what she thought the job would be. She had previously worked in a large organisation, namely LWT. This was a small organisation with four employees which muddled its way through each day. The expectations of strict demarcation lines for work are very different in a large organisation from a small organisation and the description provided to us by both Mr Sparks and Mr Bayliss as to how everyone was expected to "muck in" and do various tasks presented to us as wholly realistic. We therefore found as a matter of fact that the circumstances in which the Applicant worked, finding that she had to do some cleaning, some washing up, some errand running and not having her own work station, were not in any way connected to her sex, nor could they be said to be intolerable working conditions. They were the working conditions in which everybody worked because it was a small company with key tasks in the form of editing.

21 As a matter of fact, we preferred the evidence of Mr Bayliss and Mr Sparks in relation to the applicant being asked to do painting and general tasks in relation to the move from Poland Street to Newburg Street. They said that they did the bulk of the work and Applicant offered to help. We accepted that that was the correct position. It presented as the most likely way that this event would occur.

22 We find as a fact that the Respondents did seek to support the Applicant in the way in which she learned how to use the equipment, they offered the training on the basis that she should learn from the manuals and be given some practical help. This was offered. If it was not to the level that the Applicant sought, it was from her misunderstanding, not on the part of the Respondents."

9. As to the alleged offensive remarks the Tribunal recorded that of the three witnesses who had given evidence before them, they found Mr Sparks to be the most consistent and reliable. They accepted his evidence that contrary to what Ms Walton had asserted, he had not been made aware of the first incident in April; and they said they found it more credible that if the remark had been made at all, it had been in a relatively harmless context as described by Mr Bayliss from his recollection, and not directed at the Applicant. They also said they found Mr Bayliss' explanations for what had happened on the day of the installation of the "Avid" software, and the time he had been working on the "Citizen Kane" material, wholly credible; and they found no evidence that indicated he had a "down" on the Applicant as she had strenuously alleged.
10. On the one incident about which they did not accept Mr Bayliss's evidence they said:

"26 In relation to the remark made in June (the "knickers" remark), it was clearly an extremely offensive remark to make. This was a matter reported to Mr Sparks and it was one that he took seriously. We therefore find that this remark was made. We do not believe Mr Bayliss when he says he did not say it.

27 We found Mr Sparks to be credible when he said that, following the Applicant informing him of this remark, they spent four hours in the pub discussing it and she said that he wished him only to monitor the situation, not formally to tackle Mr Bayliss. To agree to monitor the situation is to take action in relation to it."

11. Ms Walton pursued no formal complaint about any of these matters in July 1999, being diagnosed shortly afterwards as suffering from depressive illness. Some two months after going off sick for this reason she made a generalised allegation of sexual harassment, in a letter to Mr Sparks dated 8 September 1999 asking him to make a financial proposal to facilitate her return to work, but despite being asked to do so did not set out her allegations in any detail until a letter of 27 November 1999, extending to four pages. Her originating application was not presented until the following April, some time after her statutory sick pay period had elapsed and after her resignation had taken place.
12. In those circumstances it was agreed both before the Tribunal and before us (in our view entirely correctly) that there were two principal issues for the Tribunal to consider as regards the complaints against the company. The first was whether having regard to its most recent response to her complaints at the time of her resignation (contained in a detailed letter from Mr Sparks dated 22 December 1999, referred to by the Tribunal at paragraphs 17, 29 and 30 of their Extended Reasons) and in view of the previous history of the matter, there was such a fundamental breach of the employer's duty of trust and confidence towards Ms Walton at that time as to justify her treating her contract as repudiated, so that her resignation on 11 January 2000 gave rise to an unfair dismissal. The second was whether such dismissal (if any), or the company's alleged continuing failure to investigate and deal with her complaints properly down to the date of her resignation, amounted to less favourable treatment of her as a female employee by reason of her sex.
13. A third issue, acknowledged both before the Tribunal and before us to be relevant for practical purposes only to a possible claim against Mr Bayliss personally, was whether a separate complaint based solely on the one offensive remark he was found to have made in late June 1999 should be admitted. This, it was agreed, required the exercise by the Tribunal of its discretionary power under section 76(5) Sex Discrimination Act 1975 since as a separate head of complaint it was otherwise well out of time.
14. The Tribunal's conclusions against the applicant on each of these issues were explained in their Extended Reasons. First they did not find the conditions to establish an unfair constructive dismissal on 11 January 2000 proved. Having made the primary factual findings to which we have already referred, they found that Mr Sparks in his letter of 22 December 1999 had answered each of the allegations made by the applicant, albeit not to her satisfaction. He had further gone on to offer a way forward, by making various specific proposals about the arrangements he was willing to make if she returned to work, and offering further discussion. They concluded that he could in practice have made no better offer as to how her future employment should proceed than he did in that letter, and that it had not been shown that the employers had fundamentally breached the applicant's contract of employment. They had behaved fairly towards her. Consequently,

"32…She was unhappy at the reply given to her and resigned, but her resignation could not be said to be on the basis that the reply of 22 December was the final straw in a series of minor breaches. The letter of 22 December was a proper reply to a grievance. It unfortunately did not give the Applicant the answer she had hoped for. That, however, does not mean that she can claim constructive dismissal within the meaning of section 95 of the Employment Rights Act 1996."

15. They further held that, there having been no dismissal to amount to a detriment and the action taken by the First Respondent to address the applicant's concerns having been reasonable, it had not treated her less favourably on the ground of her sex, so that the main sex discrimination complaint was dismissed as well. Finally they declined to exercise their discretion to admit a separate complaint about the June 1999 remark after such a prolonged delay. Explaining why they did not consider it would be just and equitable to do so, they said that:

"We bear in mind that the Applicant has been ill but the Applicant was well enough to write the letter on 8 September setting out her concerns and a further very full letter on 27 November. She clearly could have presented her complaint much earlier than she did in relation to the alleged remarks. We consider that the action taken by Mr Sparks in relation to the June remark was reasonable given that he specifically asked the Applicant what action she wished him to take and was given the instruction to monitor the situation. In the light of that instruction to Mr Sparks and the fact that the Applicant delayed for almost five months after the final date when she could have presented the Originating Application, we do not consider that it would be just and equitable to extend the time limit in relation to this matter."

16. It was agreed by Miss Spire, who appeared on Ms Walton's behalf both before us and at the Tribunal, that given the way the case had been presented at the Tribunal there could be no criticism of them for failing to address any heads of complaint outside those three issues. We mention that because at the preliminary stage of this appeal there seems to have been a suggestion that its scope might be wider.
17. The original Notice of Appeal dated 27 November 2000 was based on four main contentions: first an allegation of "perversity" in the Tribunal's findings of fact, in no less than 23 specific respects; second an alleged error of law "in deciding whose evidence to prefer" despite alleged inconsistencies in the Respondents' evidence; third an allegation of "bias" on the part of the Tribunal, not only in making perverse findings as already alleged, but also in alleged improper conduct by the Chairman who, it was said,

"throughout the hearing … displayed open bias and/or prejudice in favour of the Respondent";

and finally an alleged breach of Article 6 of the Convention on Fundamental Rights and Freedoms in not having afforded Ms Walton a fair hearing.

18. In accordance with the usual practice of the Appeal Tribunal where such allegations are relied on, Ms Walton was required to swear an affidavit deposing to the truth of what she said about improper conduct on the part of the Tribunal and did so, amplifying and extending it to 14 pages of detailed allegations. With the leave of the Appeal Tribunal given at the preliminary hearing the original grounds of appeal have been re-formulated into the Amended Notice of Appeal now before us, consisting of: (A-B) a total of 18 separate allegations of perversity in the Tribunal's factual findings, grouped under two different heads; (C) the allegation that in three respects the Tribunal erred in law by making findings of fact without any evidence to support them; (D) the repeated allegation that in six respects they erred in law in deciding whose evidence to prefer without taking account of inconsistencies and without giving proper reasons for their preference; (D-E) additional allegations that the Tribunal erred in law by wrongly declining to exercise their discretion to admit the complaint in respect of Mr Bayliss's remark in June 1999; and (F) repeated allegations of bias on all the same grounds as before. The complaint based on the Human Rights Act was dropped.
19. By the time the case was effectively before us for full hearing, matters had moved on again; as full official transcripts of the entire Tribunal proceedings (which had been taped) had in the meantime been obtained, following directions to permit this given at a special hearing by the President. In the light of what was shown on the transcripts we permitted Miss Spire to withdraw from the Amended Notice of Appeal all the allegations of personal misconduct on the part of the Chairman. They were obviously completely insupportable, as the transcript of what actually took place showed the hearing to have been conducted in a fair, friendly and entirely proper manner throughout. We declined Miss Spire's further application to add as a fresh and separate ground of appeal by re-amendment an allegation that the Tribunal's decision was in error in law by reason of the Chairman's note of the evidence being "inaccurate and incomplete". The only new ground put forward in support of this was that the typed copy of the Chairman's notes, which were in abbreviated form, ran to only 15 pages, while the full transcript extended to over 200: otherwise, as Miss Spire told us, she would simply be relying on points where she was already contending the Tribunal's findings were bad either for perversity or for lack of evidence. On that basis we were unable to see how the general criticism of the Chairman's note as a separate head of appeal added anything material to what we had to decide. Similarly, the allegations that still remained undeleted under the heading of "bias" in the Amended Notice of Appeal were simply another way of expressing the attack already made on specific findings as "perverse", in the sense that no reasonable Tribunal properly directing itself could have reached them on the evidence before it, or as having been reached without any evidence to support them at all.
20. Apart from the one question of discretion about the June 1999 incident, everything therefore came down to whether the Tribunal's findings of fact were defective in the various specific ways alleged in the amended grounds A to D. Miss Spire's argument took us in considerable detail through the evidence, which she invited us to compare with the findings of fact the Tribunal recorded, urging us to conclude from the comparison that the findings were wrong or unjustifiable. In particular she sought to point to what she said were inconsistencies in the evidence of Mr Sparks which made it wrong for the Tribunal to have accepted him as the most credible witness. Instead they should have rejected his evidence where it conflicted with that of Ms Walton, and Mr Bayliss' evidence should have been rejected altogether: if the Tribunal rejected his specific denial of having made the offensive remark in June 1999, it was wrong and unreasonable of them to have accepted his word on anything else. Instead they should have held that he had been responsible for a campaign of deliberate harassment against her, motivated by jealousy as Ms Walton had suggested, and that Mr Sparks had known all about this and just as deliberately failed to do anything about it. It was further wrong for the Tribunal on the disputed issue of the nature of the job Ms Walton had initially been engaged to do to have expressed their own view of the substance of the arrangement, as they had done in paragraph 19 of their Extended Reasons quoted above: they should have accepted her consistent evidence that she had gone to the Respondents as Assistant Editor. It was similarly wrong of them to have expressed their own assessment of what led to the breakdown in Ms Walton's health (as they did at one point in paragraph 32 of their Extended Reasons, referring to the loss of her illusions, and her subsequent inability to cope). This failed to take proper account of the medical evidence from Ms Walton's GP, which Miss Spire said supported the claim of sexual harassment at work. Consequently, the only proper decision a reasonable Tribunal could have given on this evidence was in favour of the Applicant on both main issues. Moreover the only reasonable way the discretion to admit the late complaint about the June 1999 incident could have been exercised was in her favour as well.
21. We have considered all of these arguments carefully, in conjunction with the unusually extensive written material before us which includes the whole of the Chairman's notes of evidence and the official transcripts of the entire hearing. We have not however been persuaded at the end of the day that any perversity or other error of law has been shown on the part of the Tribunal such as to justify setting the decision aside. To each of the numerous points relied on, the answer is the same: they all involve attempting to reopen and reargue issues of fact in the case which have already been properly determined by the Employment Tribunal.
22. We remind ourselves that the facts of the case in any complaint brought before an Employment Tribunal are for that Tribunal and not us to determine; and that matters such as the credibility of individual witnesses, and the weight to be accorded to the evidence of one side or the other on particular factual issues in dispute, are for them alone to determine. They are the body charged by Parliament with hearing the evidence in the case; and it is on their own perceptions and recollection of that evidence, and of the people who give it, that a decision on what to accept and what to reject must depend. Even on the basis of what is shown in a full transcript of the actual words used and recorded in the course of a Tribunal hearing, it is not for this Appeal Tribunal to say, or even to attempt to form a view on, what decision we think we might have given on the facts of the case had we been the Tribunal seeing and hearing the evidence, which of course we were not.
23. The limited nature of the jurisdiction of the Appeal Tribunal to interfere with a Tribunal's factual findings on "perversity" grounds has been emphasised many times, but for present purposes it is perhaps best summarised by the judgment of Mummery LJ, then sitting as the President of the Appeal Tribunal, in Stewart -v- Cleveland Guest Engineering Limited [1994] IRLR 440, 443 at paragraph 33:

"Whenever an appeal is based on the perversity ground, this Tribunal must be extremely cautious not to conclude that the decision of the Industrial Tribunal is flawed because the Appeal Tribunal would have reached a different conclusion on the evidence or thinks that another Industrial Tribunal would have reached a different conclusion on the evidence. An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts. This Tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is 'irrational', 'offends reason', 'is certainly wrong' or 'is very clearly wrong' or 'must be wrong' or 'is plainly wrong' or 'is not a permissible option' or 'fundamentally wrong' or 'is outrageous' or 'makes absolutely no sense' or 'flies in this face of properly informed logic'. This variety of phraseology is taken from a number of well-known cases which describe the circumstances in which this Tribunal (and higher courts) have characterised perversity. The result is that it is rare or exceptional for an appeal to succeed on the grounds of perversity. The reason why it is a heavy burden to discharge is that it has been recognised by those with wide experience and practical wisdom that there are many factual situations arising in the field of industrial relations, including sex discrimination, in which different conclusions may be reached by different Tribunals, all within the realm of reasonableness. It is an area in which there may be no 'right answer'. The consequence of this approach, also approved in cases of high authority, is that it is not appropriate or fruitful to subject the language of the decision of the Industrial Tribunal to 'meticulous criticism' or 'detailed analysis' or to trawl through it with a 'fine-tooth comb'. What matters is the substance of the Tribunal's decision, looked at 'broadly and fairly' to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case and to enable their advisers to identify an error of law that may have occurred in reaching the conclusion. Viewed in that way, the decision of the Industrial Tribunal is not perverse."

24. Judged by that well-established standard, the findings of fact and conclusions of this Tribunal were not in our judgment open to attack as "perverse" in any of the respects alleged. More specifically:

(1) the Tribunal's findings about the nature of the job the applicant was engaged to do, her own unrealistic perceptions of what it might be, the formality of the training to be provided, and whether she was treated unreasonably during her employment, were plainly justified on the evidence before them about what was said between the parties, and a common sense assessment of the inherent nature of this kind of employment for a young person just starting as a junior in a very small firm in the media industry;

(2) the conflicts of fact over what was or was not said and what did or did not happen in the various incidents complained of, were for the Tribunal to determine: they were entitled to decide which version they believed, or to conclude for themselves what the likely truth was on any matter, without accepting or rejecting the evidence of either side in its entirety;

(3) we do not accept the contention that there was no evidence to support the findings criticised in paragraph C of the Amended Notice of Appeal. We agree with the submission of Mr West on behalf of the Respondents that there was sufficient evidence before the Tribunal to warrant the primary findings already quoted from paragraphs 19-22 of their Extended Reasons; the conclusions that Ms Walton had unrealistic expectations of what her job would involve, and was mistaken if she thought she had been promised training of a formal nature such as being given courses, followed from those primary findings; and the comment about what they thought had really given rise to her illness was also a justified inference from the facts they found, the doctor's letter only repeating what he had been told by his patient.

25. On the issues that actually determined the case, the Tribunal's conclusions that (1) it had not been established that the Respondents were in fundamental breach of Ms Walton's contract of employment so as to justify her treating the contract as repudiated by them in January 2000, and (2) it had not been established that they were guilty of a continuing course of detrimental conduct towards her amounting to less favourable treatment on the ground of her sex, were conclusions they were entitled, in view of their findings of primary fact, to reach. Similarly, the decision that they did not consider it just and equitable to allow the specific complaint about the June 1999 incident to be admitted long out of time was one they were entitled to reach in the exercise of their discretion, for the reasons they gave. The reasons which led the Tribunal to those conclusions on all three issues are clearly and fully explained in the statement sent to the parties on 17 October 2000. In our judgment, there is nothing wrong in law in the decision there recorded.
26. Much of the attack mounted by Miss Spire on the Tribunal's factual findings was based on what she said were individual discrepancies between what was shown on the transcript and what was recorded by the Chairman in her note. We were not persuaded that on any of the specific points to which she drew our attention there were in fact material discrepancies: on the contrary, the Chairman appears to us to have accurately recorded the essence of the evidence being given by both sides on the points that actually mattered, though of course in a more summary and focused way than the full verbatim record provided by the transcript.
27. In any event however, the whole basis of this submission was in our judgment wrong. It assumed unjustifiably that what is shown as recorded in the Chairman's note of the evidence was the only source for the decision, and for the assessment made by all three members of the Tribunal on such matters as the believability of individual witnesses, and where the real truth lay about what had been agreed between the parties and what had happened over the course of Ms Walton's employment. In fact of course it is common practice for each member of the Tribunal to make his or her own notes of the important points in the evidence, and there is no reason to suppose that would not have happened here. In any event however, the perceptions and recollection each member carries in his or her mind of the individual witnesses and the way they gave their evidence must play a major part in any decision depending, as this one did, on credibility. Here the Tribunal's conclusions on the factual issues in the case were unanimous, and it is clear these must have been discussed and arrived at while the witnesses and the evidence at the hearing were still fresh in all of their minds, since the statement of extended reasons was ready to be issued to the parties only 14 days after the hearing itself.
28. The production of full transcripts in this case has had one beneficial effect, in that it showed the accusations of improper conduct against the Chairman to be unfounded, with the consequence that they were immediately and very properly withdrawn by Counsel. Beyond that however, we have to say that the assistance we have gained from having full transcripts has been very limited, though the paper and time involved in the appeal have of course both been added to substantially. With that experience, we record our doubt whether full transcripts should become a general feature of appeals to the Appeal Tribunal, which are of course solely concerned with questions of law. It would not be right for their availability to become the excuse for attempts to trawl through a Tribunal's detailed treatment of the facts in the hope of turning up some arguable discrepancy or defect in the findings: that would be exactly the kind of fine-tooth combing exercise which it has been emphasised many times is not the function of the Appeal Tribunal. The primary document by which an Employment Tribunal's decision has to be judged, as we think the passage cited above from the judgment of Mummery LJ makes clear, is the record of the factual findings, conclusions and reasoning set out in the Statement of Extended Reasons which the rules of procedure require to be supplied to the parties for that purpose. In this case, for the reasons we have already given, there was in our view no error of law in the decision so recorded.
29. For those reasons, this appeal is dismissed. Following the indication given at the conclusion of the hearing that the Respondents might wish to apply for an order for their costs if that were the result, we direct that any such application should be made in the first instance in writing setting out the grounds, and annexing copies of any relevant correspondence with a breakdown of the costs actually incurred by each respondent, not later than 21 days after the date of issue of this judgment. Written submissions in answer on behalf of the appellant (including any relevant details about her own financial position, and how these proceedings have been funded) are to be lodged within 21 days thereafter. Both sides should please indicate whether they wish the case restored for any further oral argument on costs in addition to the written submissions.