United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M ROBERTSON (Representative) Medran Developments Ltd 22 Hans Place London SW1X OEP
For the Respondent	MR J TAYLER (of Counsel) Instructed by: Messrs Abrahams Dresden Solicitors 30 St John's Lane London EC1M 4NB


 


JUDGE D M LEVY QC

1. This is an appeal by Medran Developments Ltd ("the Appellant") from a Decision of an Employment Tribunal, promulgated on 19 February 2001. The proceedings in the Employment Tribunal arose because of an Originating Application dated 19 November 1999. In that application Mr C Haworth ("the employee") sought relief alleging unfair dismissal and breach of contract/failure to provide written reasons for dismissal/unlawful deduction of wages.
2. Two Notices of Appearance were entered, the first on 15 December 1999 in which the Appellant claimed that the reason for dismissal was conduct or some other substantial reason and an amended Notice of Appearance dated 21 July 2000 which gave the reason as redundancy.
3. Because of interlocutory failures by the Appellant, there was a hearing before an Employment Tribunal on 9 January 2001. The reason for the hearing was concisely set out in paragraph 1 of the Extended Reasons promulgated by the Tribunal on 19 February 2001.

"1. The [employee] has made complaints to the Tribunal"

and it sets out what those complaints are and continued:

"….The [Appellants] have counter-claimed in respect of over-payment of expenses and salary. It is alleged that the [employee] has been fraudulent. This was a preliminary hearing into the application by the [employee] that the Appellant's answer and counter-claim should be struck out for failure to comply with an order of the Tribunal. Neither party wished to call any evidence and the matter was decided upon representations by each counsel."

Advocates other than those appearing today appeared for the parties.

4. The unanimous Decision of the Tribunal was that:

"(i) That the [Appellant's] answer and counter-claim be struck out, and the [Appellant] be debarred from defending these proceedings.

(ii) That the [Appellant] be ordered to pay the [employee's] costs on the standard basis from 22 September 2000 up to and including the date of this hearing; to be assessed if not agreed.

"(iii) The matter be adjourned until 4 May [2000] before the same Tribunal for a further hearing on merits."

5. Immediately before the hearing, there had been an application to this Court for an adjournment of that hearing. This was heard and dismissed by Judge Clark. Soon after the Order was promulgated the Appellant lodged a Notice of Appeal dated 30 February 2001. The Respondent's answer is dated 25 July 2001. There was a preliminary hearing before a panel headed by Charles J on 3 May 2001, when the matter was sent to a full hearing.
6. There was a hearing before Burton J and panel on 11 February 2002 on which occasion this Tribunal adjourned the hearing of the appeal and ordered that Skeleton Arguments be exchanged between the parties and lodged with the Employment Appeal Tribunal not less than fourteen days before the date of the full hearing. On that occasion, the company was represented by Mr Robertson. He is the sole director and principal shareholder in the company today. As appears from the judgment of Burton J, the primary reason for the adjournment was to enable the company to be professionally represented if possible at the adjourned hearing and possibly to present further documents. Mr Tayler appeared on behalf of the Respondent as he has today. Mr Tayler's Skeleton Argument was before Mr Justice Burton and the panel. No Skeleton Argument was received from Mr Robertson prior to this morning and no bundle was lodged before the Tribunal fourteen days before the date of the hearing. Happily Mr Taylor produced for us the bundle which we think was before the Employment Tribunal at the hearing. We have been taken through much of it during the course of the hearing.
7. In giving the judgment of the Tribunal on 11 February 2002, Burton J and his colleagues raised a number of points on which he thought it would be necessary for us to be addressed today. It was, we think, anticipated that there might be an amended Notice of Appeal but there has been no such amendment. Mr Tayler has, very properly, in the course of his submissions to us, dealt with the points raised by Burton J in judgment.
8. Before going to the issues raised on the appeal, it is perhaps salutary for us to remind ourselves of the jurisdiction we have to interfere with an interlocutory judgment of a Tribunal. In that regard, Mr Tayler has referred us to the decisions in Noorani -v- Merseyside TEC Ltd [1999] IRLR 184 and Medallion Holidays -v- Birch [1985] IRLR 406. In the latter case at paragraph 26 the Employment Tribunal in a panel headed by Waite J, said this at paragraph 26:

"The striking out of the entire notice of appearance was indeed a severe order, one that might even be regarded by many people as harsh. But it has to be remembered that Parliament had conferred upon the Tribunals a jurisdiction of an exceptional kind and has constituted them at the same time masters (within their broadly framed procedural rules) of their own procedure. They are required to dispense their own distinctive form of justice: one that keeps formality to a minimum which shuns legalism, and which sets out to achieve the maximum expedition consistent with fairness to the parties. Expedition is required not only by the nature of the cases themselves, which frequently involve hard or hurt feelings better given an early outlet than left to be brooded over. It is also called for by the nature of the remedy which the Tribunals are required to provide. They are under a statutory duty to consider as their primary remedy in cases where a dismissal has been found to be unfair an order for reinstatement or re-engagement. The practicability of making any such order is bound in almost every case to diminish with the passing of time."

What goes for a striking out of a Notice of Appearance, in our judgment, under the Rules goes equally for the striking out of a defence or cross claim.

9. In the Noorani case, the EAT had reversed the decision of the Employment Tribunal. The Court of Appeal then reversed the judgment of this Tribunal because, in the words of Henry LJ, in Noorani -v- Merseyside TEC Ltd - paragraph 37:

"It follows that in my judgment the employment tribunal here did not make any mistake in law and exercised their discretion properly. The Employment Appeal Tribunal did not find that the employment tribunal had acted outside 'the generous ambit in which reasonable disagreement is possible', nor, in my judgment, could they possibly have done so."

The other Lord Justices agreed with his judgment. Where a decision which turns on the exercise of discretion has been made by an Employment Tribunal, unless there are serious errors of law, the EAT must be very cautious before interfering with such exercise.

10. With that by way of background, we turn to the merits of this appeal and the background to it. The sequence of events is set out in paragraph 3 of the Extended Reasons given by the Employment Tribunal and they show the delays which occurred before the striking out, of which the company complains, took place.
11. The sequence of events which was not in dispute read:

"(i) 19 November 1999 the Applicant presented his IT1.

(ii) On 15 December 1999 the Respondents presented their Notice of Appearance.

(iii) A hearing was fixed for 16 June. On that date an application was made by the Respondents for adjournment. Their reason was that their computer system had been affected by a virus and they had lost most of their documentation. The Tribunal reluctantly decided to grant the adjournment but gave directions for further conduct of the proceedings. The Respondent was given leave to amend the Notice of Appearance by 7 July. If either party intended to request Further and Better Particulars this should be done by 21 July and the other party should reply to that request by 4 August. The Respondents [the company] agreed to reimburse the Applicant [employee] with the cost of that hearing.

(iv) At the request of the Respondents the timetable was extended to provide for the amended Notice of Appearance to be served by 21 July"

(v) On 21 July the Respondents served an amended IT3 together with a second version of its counter-claim against the Applicant.

(vi) On 4 August 2000 the Applicant, who was then acting for himself wrote to the Respondent's representative asking for Further and Better Particulars in respect of two documents which had been appended to a statement of evidence of Mr Robertson, the proprietor of the Respondent business "

"These requests were as follows:

"1 Item 4 - Balance on Director's Loan Account - Please let me have full details of how this was incurred, what it relates to and the date/dates of the amounts incurred.

2. Item 7 - some Areas of Mr Howarth's Cost to Group - The documents set out 13 items of alleged cost to the Medran Group. Please let me have full details of all of these items, the individual amounts which make up these sums and to what they relate, all relevant dates and supporting documentation"

(vii) The Respondents failed to comply with this request by 18 August.

(viii) At the request of the Applicant the Tribunal made an order on 30 August requiring the Respondents to send to the Applicant by 13 September 2000:

"The following further particulars of the grounds on which you rely:

The Further and Better Particulars requested in the Applicant's letter dated 4 August 2000, a copy of which is enclosed for your reference."

The Order contained the usual warning that failure to comply could result in the Notice of Appearance being struck out in whole or in part.

"(ix) The Respondent [the company] appointed solicitors to act on its behalf on 12 September and at their request the company's time for compliance with the Order was extended. A letter from the Tribunal stated:

"The Chairman has instructed me to inform you that an extension of time for compliance with the outstanding Order for Particulars had been granted until 22 September 2000 only. I am instructed to point out that a further extension is very unlikely to be granted and to draw parties' attention to the penalties attached to the original Order."

" (x)…..On 27 September 2000 the Respondent's [company's] solicitors wrote to the Tribunal asking for an adjournment, highlighting 9 incidents of alleged embezzlement on the part of the Applicant [employee] involving a total of £549.09. The letter suggested that the matter was complex and in fact the claim might exceed £100,000. The Chairman after hearing representations from the Applicant refused the postponement. The Respondents appealed against that refusal to the Employment Appeal Tribunal, who dismissed that appeal. Unfortunately the matter could not be heard on the dates fixed because a Tribunal was not available and the Respondents accordingly had their adjournment.

(xi) On 2 October 2000 the Applicant [employee] applied to the Tribunal for an order striking out the Respondent's answer and counter-claim for failure to comply with the order of 30 August."

(xii) On 11 October the Respondent's [company's, employer's] solicitors wrote to the Applicant's [employee's] solicitors setting out what they claim are the answers to the request for Further and Better Particulars. The Applicant disputes that these are adequate replies. The hearing was fixed for 6 December to hear the application. This was adjourned at the Respondent's request because of High Court proceedings in which the company was involved. This was granted and the matter finally came before the Tribunal today"

12. The answer given in the letter of 11 October, in response to the request of 4 August was:

"Item 4

This figure represented the amount as at 1996 Your client is already in possession of this information and relating details, which were supplied to him by the Company Auditors, at that time, Gerry Chantry Vellacot. Unfortunately, at the present time, we do not have all the information but we are endeavouring this information and shall forward the same to you as soon as possible.

Item 7

VAT

Our client maintains that your client contacted Messrs Moon Beaver and obtained confidential information from them relating to our clients' confidential VAT matters, when your client had no authorisation to do so. In the absence of your undertaking, that documents will only be used for the purposes of this action, our client is not prepared to disclose highly confidential information to you. Such confidential VAT information is also presently the subject of legal proceedings. However, we attach a copy of the High Court Petition, from H M Customs & Excise in the sum of £86,305.44, a figure calculated by the erroneous returns submitted by your client.

We again reiterate that if you agree to our undertaking as requested, we will be in a position to provide you with confidential VAT information"

The Appellant then gave some other information, although of certain requests they said:

"We are still endeavouring to obtain all the documents"

13. The application of 2 October 2001 was made under Rules 4(7) and 13(2)(e) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993, as amended. The basis of the application was the company's breach of the Order and its conduct of the litigation as a whole, as was shown in the Employment Tribunal's Extended Reasons in paragraphs 5 and 6 following which this appeal was commenced. Later paragraphs gave reasons for the Tribunal's decision.
14. The grounds stated in the Notice of Appeal are:

"6.1 The Tribunal misunderstood or misapplied the law in that it exercised its discretion to strike out the Respondent's Answer and Counterclaim and debarred the Respondent from defending these proceedings on wrong principles.

PARTICULARS

(i) The Applicant's application to strike out the Respondent's Answer and Counterclaim was based on Rules 4(7) and 13(2)(d), (e) and (f) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993.

(ii) Rule 13(2)(f) only applies to striking out an originating application for want of prosecution. This section does not apply to a Respondent's Notice of Appearance. Even if it did, it could only apply to the Respondent's Counterclaim which the Respondent had already applied to withdraw at the beginning of the hearing. (This application was refused and is the subject of a separate Ground of Appeal below).

(iii) In paragraph 13 of the Extended Reasons the Tribunal has set out the decision to strike out the whole of the Respondent's Answer and Counterclaim was taken on two grounds, namely a failure to comply with the Order of the 30^th August 2000 (i.e. under Rule 4(7) ) and secondly because the Respondent's "whole" conduct of the proceedings had been both frivolous and vexatious (i.e. Rule 13(2)(e) ).

(iv) In paragraph 7 of its Extended Reasons the Tribunal sets out the principles upon which it purported to exercise its discretion. These principles clearly relate to Rule 13(2)(f). In paragraph 7 of the Extended Reasons reference is made to having referred to Harvey on Industrial Relations and Employment law and it would appear that the Tribunal went to Volume 5, T[656], a section headed "Want of Prosecution". The extract from the decision of Hoffmann L J in the case of Evans' Executors v Metropolitan Police Authority [1992] IRLR 570 has been lifted from that section at 661.

(v) The principles of Birkett v. James involve examining the whole action in the context of delay and ruling whether there has been inordinate and inexcusable delay and whether that that has caused prejudice to the Defendant. [Note: not "the other party" as the Tribunal appears to have thought] or that there is a substantial risk that there could not be a fair trial of the action.

(vi) The Applicant's application, whether under Rule 4(7) or Rule 13(2)(e), was based on the failure to comply with an order of the Tribunal. That is how the hearing was conducted. It was not based on wider considerations of delay, prejudice and the capacity to have a fair trial. At no time did the Tribunal indicate it would act of its own motion.

(vii) It is submitted that the correct approach under Rule 4(7) is as summarised in the editorial notes in Harvey at Volume 4, R 555:

"As a general rule this power to strike out should only be used where a Court would use its equivalent power, i.e. where any judgment otherwise obtained would not be fair between the parties; a punitive order would only rarely be justified: National Grid Co plc v. Verdee (1992) IRLR 555 EAT."

The failure to comply with the order has not rendered a fair hearing impossible, certainly not on every issue.

(viii) Under Rule 13(2)(e) the Tribunal should not have considered whether the conduct of the Respondent was frivolous and vexatious over the "whole conduct of the proceedings" (unless it was acting on its own motion which it did not state it was doing). The conduct being impugned is the failure to comply with the order of the Tribunal and it is that failure which stands to be judged as to whether or not it is frivolous and vexatious.

6.2 The Tribunal misunderstood or misapplied the law in that it exercised its discretion on wrong principles in that the order made was in breach of Article 6 of the European Convention on Human Rights and Article 1 of the First Protocol. If the failure to comply with a Rule, Practice Direction or Court Order has not rendered a fair trial impossible, an order striking out a case even for contumacious breach is likely to be a breach of Article 6 of the European Convention on Human Rights and fundamental freedoms (1953, CND 8969) as being a breach of the Respondent's right to a determination of his civil rights and obligations at a fair and public hearing within a reasonable time by an independent Tribunal, (Arrow Nominees Incorporated v Blackledge (The Times) December 8^th, 1999 Ch.D).

6.3 The Tribunal's decision that the Applicant had been prejudiced was one which no reasonable Tribunal could have reached and was perverse and/or was obviously wrong. The order for Further and Better Particulars related solely to items 4 and 7 attached to a statement of Mr Martyn Robertson.

(i) Item 4 related to Director's drawings. Director's drawings are in fact not referred to in either Form IT3 or the statement of Mr Robertson and so are not an issue. In any event, any outstanding company loans to the Applicant would form the basis of a contractual claim and the Respondent had already applied to withdraw the Counterclaim from the Employment Tribunal. Any failure to provide details of the Director's Loans cannot have prejudiced the Applicant in any way whatsoever.

(ii) Item 7 sets out 13 instances whereby it was alleged that the Applicant's activities had caused the Respondent expense. That goes to the issue of conduct in terms of the Applicant's dismissal. Any issue relating to breach of contract was no longer live given the Respondent's withdrawal of its Counterclaim. The 19 day delay in providing the particulars has not meant that there cannot be a fair trial on those issues. Of the 13 items in only 3 instances was there an inability to provide information. If the Tribunal considers the reasons advanced in respect of those three matters to be unsatisfactory then it could and should have debarred the Respondent from raising those issues as relevant matters of conduct. There clearly can be a fair trial of the hearing in relation to all the other allegations of conduct, redundancy, procedure of the dismissal, any contractual claim arising out of the dismissal and the claim in relation to unauthorised deductions from wages and unpaid expenses.

6.4 The Tribunal's decision that no explanation for the delay had been advanced was one that no reasonable Tribunal could have reached and was perverse and/or was obviously wrong. A detailed 4 page letter dated 27^th September 2000 from the Respondent's solicitors to the Employment Tribunal set out the reasons why the Further and Better Particulars and supporting documents could not be supplied within the ordered time-table.

6.5 The Tribunal's decisions that the Respondent had "shown a contempt of Tribunal proceedings", "that the delay is wilful and with intention to delay the matter being heard" and that there had been a "total disregard of orders" were decisions that no reasonable Tribunal could have reached and were perverse and/or were obviously wrong. It was wrong for the Tribunal to consider that in the absence of any explanation for the delay it was entitled to find that the delay was wilful and with intention to delay the matter being heard. It was wrong for the Tribunal to consider that the Respondent was treating the Tribunal's orders with contempt. At every stage the Respondent had written to the Tribunal setting out its particular difficulties and requesting an extension of time. At no time has it ignored deadlines or the orders made. The request for an extension of time contained in the letter dated 27^th September 2000 has still, incidentally, to be ruled upon.

6.6 The Tribunal's decision that the Respondent's whole conduct was frivolous and vexatious was one that no reasonable Tribunal should have reached and was perverse and/or obviously wrong. A delay of 19 days in providing information in the circumstances of this case cannot be characterised as being so bad as to constitute an abuse of the process warranting total exclusion from defending the proceedings. It is not frivolous or vexatious to defend proceedings brought for very large sums of money. The Tribunal seems to have treated with some scorn the allegation of expenses fraud when, of the 9 examples given by the Respondent the Applicant has already conceded 2 were "mistakes". In any event it was made clear that those allegations were discovered post cessation of employment and hence would only go to remedy as appropriate.

6.7 The Tribunal's decision not to allow the Respondent to withdraw its counter-claim was one that no reasonable Tribunal could have reached and was perverse and/or obviously wrong. As a matter of policy it cannot be right to disallow the voluntary withdrawal of a claim due to the inadequacy of the Tribunal's jurisdiction so that the Tribunal can strike out the counterclaim to punish the Respondent thereby potentially [although this is denied] prejudicing the Respondent in bringing any further High Court action.

6.8 In the event that this appeal is successful then the costs order should also be overturned. The Respondent was not guilty of unreasonable conduct."

15. Shortly after the appeal was lodged there was an interlocutory hearing of the appeal before a panel headed by Charles J which made an Order dated 9 March 2001. Pursuant to that Order, Mr Robertson made a witness statement on 23 May 2001, to which Mr Shawdon responded by a statement dated 5 June 2001. The Chairman of the Tribunal commented on those letters by letter dated 25 June 2001. We have read all these documents and the Chairman's Notes of Evidence. He confirms that Mr Shawdon's statement "seems to be accurate", that an opportunity for Mr Robertson to give evidence was provided but it was not used, that the ambit of the hearing was the two grounds presented for strike out and Counsel appearing does not refer to any authorities. This resulted in the panel on retirement consulting Harvey, as stated in paragraph 7 of the Extended Reasons.
16. Mr Robertson relied heavily on the matters referred to a critical for this appeal in the judgment of Burton J. Mr Tayler's submissions took account of those. It will be convenient first to summarise his submissions.

"The Employment Tribunal properly exercised its discretion in deciding to strike out the Notice of Appearance and Counterclaim. It weighed up the competing factors at paragraphs 8 to 13 of its decision ….It properly took account of

(1) Medran's [the company's] failure to investigate and prepare its defence to the claim (paragraph 8) ( page 16).

(2) The inadequacy of the particulars eventually provided (paragraph 9) (pp 16 and 17).

(3) The history of the litigation (paragraph 10) (page 17).

(4) Medran's [the company's] contempt of tribunal proceedings and reluctance to see the matter come to a hearing (paragraph 10) (page 17).

(5) Prejudice to Mr Haworth [the employee] (paragraph 11) (page 17).

(6) Wilful delay on the part of Medran [the company] (paragraph 11) (page 17).

(7) The importance of parties obeying orders of the Tribunal (paragraph 12) (page 17).

(8) Lack of explanation for delays (paragraph 12) (page 17).

(9) The prejudice to Medran [the company] of making the order (paragraph 12)| (page 17).

(10) The balance of fairness between the parties (paragraph 12) (page 17)"

If Mr Tayler was right in those, there is little with which this Tribunal could interfere. In the Notice of Appeal, various grounds were set out, to which we have already referred. We consider Mr Tayler's submissions in the light of those grounds. Paragraphs (i)-(iii) of paragraph 6.1 of the Notice of Appeal sets out the factual background.

17. As to (iv) of 6.1, if Counsel did not agree on the principles to be applied and cited no authority of them, it is not surprising that the Tribunal obtained assistance from a leading text book. It would have been preferable to them to have heard further submissions from representatives, but, in this case, in our judgment the procedural irregularity is an insufficient ground to allow this appeal.
18. As to the criticism of the authorities referred to in the Extended Reasons, indeed Birkett -v- James [1978] AC 297 is the leading case on dismissal for want of prosecution under the Rules of the Supreme Court, but there is an obvious analogy from the reasoning which applies to Employment Tribunals as is shown by the extract from Hoffmann LJ's judgment in Evans' Executors -v- Metropolitan Police Authority [1992] IRLR 570 to which reference was made in paragraph 7 of the Extended Reasons.
19. As to the dicta from the decision in National Gridd Co PLC -v- Verdee [1992] IRLR 555, we do not consider the Tribunal on the facts as found were entitled to reach the decision it did. In these circumstances, we are not entitled to interfere with the Decision - see the citations from Noorani and Medallion Holidays above.
20. Paragraph 6.1(vi) alleges that the application was based on a failure to comply with an Order of the Tribunal. That is simply wrong. Sub ground (vii) submitted that the correct approach under Rule 4(7) as summarised in Harvey is, as a general rule,

"this power to strike out should only be used where a Court would use its equivalent power i.e. when any judgment obtained would not be fair between the parties, a punitive order would only really be justified"

Reference is then made to The National Grid Company -v- Verdee but that is wrong and is shown by the judgment in the Medallion Holidays case to which we have already referred.

21. Paragraph 6.2 of the Notice of Appeal raises complaints regarding the fairness of the hearing and a breach of Article 6 of the European Convention on Human Rights and the Article 1 of the First Protocol. In our judgment the Tribunal properly considered the issue of fairness in its Decision. In that connection, Mr Tayler referred us to the decision in Terry-v- Hoyer (UK) Ltd [2001] EWCA Civil 6678, a judgment of the Court of Appeal where the first judgment was given by Pill LJ. In paragraph 16 of the judgment he says this:

"I make the general observation that I do not accept that conduct is incapable of being scandalous or frivolous such as to justify a strike-out within the meaning of the rules only if there cannot eventually be a fair trial notwithstanding that conduct. There is conduct which no court or tribunal with its necessary concern for the proper administration of justice, could tolerate. Courts and tribunals must be concerned to do justice. They must, in doing that, have regard to the interests of litigants in general, to the proper use of court time and to the need to ensure respect for courts and tribunals in the community."

In a supporting judgment, Lady Justice Arden said:

"The essence of the appellant's case before this court is that the reaction of the Tribunal in the present was, and here I quote, "too vigorously draconian" in proportion to the default before it. No challenge was or could be made to the existence of the power to strike-out. That power primarily exists to protect the other party in the case. Therefore, in order to succeed on this appeal, the appellant must show that the Employment Appeal Tribunal's conclusion was one that no reasonable tribunal acting reasonably could make."

22. Paragraph 6.3.(i) of the Notice of Appeal suggested there was a perversity in the Order and that the Order for Particulars related solely to items 4 and 7 attached to Mr Robertson's statement. Mr Tayler reminded us that the Appellant had not challenged the decision to order the provision of Further Particulars, as is shown in paragraph 8. As for the second paragraph in ground 6.3, he submitted, we think correctly, that the delay in the provision of some of the Particulars had to be seen against the background of the Appellant's conduct as a whole.
23. Paragraph 6.4 of the grounds of appeal states that

"the Tribunal's decision that no explanation had been advanced was one that no reasonable Tribunal could have reached and was perverse and/or was obviously wrong"

It referred to a letter dated 27 September 2000 from the Appellant's solicitors at the Employment Tribunal which set out the reason why the Further and Better Particulars and supporting documents could not be supplied within the ordered timetable.

24. We have looked at that letter; it sought to explain the delay in particularising the allegations of fraud made in the counter-claim; it did not explain the failure to comply with the Order for Further Particulars, it only related to a period of delay after a solicitor had been instructed to act for the company. An explanation was advanced, which in our judgment the Tribunal was entitled to reject.
25. Paragraph 6.5 of the Notice of Appeal contains an averment that at no time had the company ignored deadlines or the Orders made. That is contradicted by the history of the case which we have set out already. Paragraph 6.6 suggests that the Tribunal's decision that the company's whole conduct was frivolous and vexatious was not one that no reasonable Tribunal could have reached in the circumstances, and suggested it was perverse. In our judgment, given the whole history of the litigation which we have briefly set out, the contentions in these paragraphs of the Notice of Appeal criticising the Decision are ill founded.
26. Paragraph 6.7 of the Notice of Appeal is one which has given us cause to pause. It reads:

"The Tribunal's decision not to allow the Respondent to withdraw its counter-claim was one that no reasonable Tribunal could have reached and was perverse and/or obviously wrong. As a matter of policy it cannot be right to disallow the voluntary withdrawal of a claim due to the inadequacy of the Tribunal's jurisdiction so that the Tribunal can strike out the counterclaim to punish the Respondent thereby potentially [although this is denied] prejudicing the Respondent in bringing any further High Court action."

We have been referred to the decision in Barber -v- Staffordshire County Council [1996] IRLR 209. That shows, in our judgment, that a Tribunal is entitled to refuse leave and to go on to consider whether the counter-claim should be struck out. There is a difference in the procedures in the Employment Tribunal and to those in the Civil Courts. We doubt that the effect of the Decision of the Tribunal will prejudice the Appellant from bringing such High Court proceedings, not yet started, as it may want to bring.

27. We considered the contentions in the Skeleton Argument on which Mr Robertson relied, and the matters, mainly of fact, which he introduced during his submissions. We found that nothing he says could draw us to a conclusion other than that the appeal must fail. It might be that a different Tribunal could have come to a different conclusion, than did the Tribunal hearing the application on 9 January 2001. However in our judgment, the Decision which the Tribunal reached was permissible. In these circumstances, we will dismiss this appeal.

We have heard an application from Mr Tayler that the Appellant should pay the Respondent's costs. The usual Order in this Tribunal is no order for costs. We see no reason to depart from that.