United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR STUART BRITTENDEN (of Counsel) Instructed By: Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH
For the Respondent	MR DIJEN BASU (of Counsel) Instructed By: Fox Williams Solicitors 10 Dominion Street London EC2M 2EE


 


JUDGE J McMULLEN QC:

1. This case is about the exercise of an Employment Tribunal's discretion in the award of costs. The judgment represents the views of all three members who have carefully pre-read the papers and Skeleton Arguments. We will refer to the parties as Applicant and Respondent.

Introduction

2. It is an appeal by the Applicant in those proceedings against a decision of an Employment Tribunal sitting at London Central over two days in 2002, Chairman Miss A.M. Lewzey, registered with Extended Reasons on 5 March 2002. The Applicant represented himself, the Respondent was represented, as today, by Mr Dijen Basu of Counsel. Today, Mr Edwards has the advantage to be represented by Mr Stuart Brittenden of Counsel.
3. The Applicant had made a number of claims, into the detail of which it is not necessary to descend. The Respondent denied all of them. The Tribunal having dismissed the claims decided to award costs.

The legislation

4. The relevant provisions of the legislation, so far as is relevant to this appeal, are the Employment Tribunal Rules 2001, of which Rule 14(1) provides as follows:

"(1) Where, in the opinion of the tribunal, a party has in bringing the proceedings, or a party or a party's representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived, the tribunal shall consider making and, if it so decides, may make –

(a) an order containing an award against that party in respect of the costs incurred by another party;

(b) an order that that party shall pay to the Secretary of State the whole, or any part, of any allowances (other than allowances paid to members of tribunals) paid by the Secretary of State under section 5(2) or (3) of the 1996 Act to any person for the purposes of, or in connection with, his attendance at the tribunal."

5. The Tribunal decided that it would award costs up to its maximum power of £10,000 and decided not to award a detailed assessment. It did so by reference to Regulation 2 by which misconceived includes the meaning "having no reasonable prospect of success". The Tribunal decided to award costs and said as follows, in paragraphs 68 and 69:

"68 In reaching our decision on the issue of whether costs should be awarded against Mr Edwards, we took the following matters into account:-

68.1 On the evidence before this Tribunal it is clear that Mr Edwards' claims are misconceived and had no reasonable prospect of success.

68.2 On 11 January Mr Edwards was clearly warned by the Tribunal hearing the application on that day to seek legal advice on the question of costs and told of the £10,000 maximum specified sum.

68.3 Mr Edwards has made 12 claims against the Respondent of which two were withdrawn because other claims were presented in the county court, making ten separate claims.

68.4 The total costs of the Respondent are in excess of £50,000. Mr Edwards clearly knew that their costs ran to tens of thousands of pounds because in one of his e-mails he mentions costs in the region of £30,000 for the Respondent.

68.5 The e-mails in the bundle suggest that Mr Edwards was legally advised earlier in the proceedings although he says that he was not.

68.6 With motivation, this matter ought to have been settled and costs have been incurred out of all proportion with the seriousness of the dispute but Mr Edwards has behaved vexatiously in spite of having been warned.

68.7 The Respondent seeks costs to be assessed.

69 The Tribunal did not consider it appropriate to order costs to be assessed but in view of the misconceived claim and the vexatious way in which Mr Edwards has pursued it, it is the unanimous decision of the Tribunal to order that Mr Edwards pay the Respondent costs in the sum of £10,000."

The appeal

6. The appeal came before an EAT, Ms Recorder Slade QC and Members on 23 September 2002 at a preliminary hearing. That Tribunal gave a judgment, as a result of which the Applicant, who was represented by Mr Quinn of Counsel at that time, amended his Notice of Appeal.
7. A dispute arose before us as to the correct scope of this full hearing, in the light of the ruling by Ms Slade's EAT and the amended Notice of Appeal. We are satisfied that the scope of the appeal which it directed is limited to what is described, in argument by Mr Basu, as stage 2 of the costs application. In stage 1, a tribunal is required to make a decision as to whether a case has been misconceived, and having done so, it is then obliged as stage 2 to consider the exercise of its discretion, that is, whether to award costs on such an application.
8. Looking at paragraphs 3, 5 and 10 of Ms Slade's judgment, and the amended Notice of Appeal, which we regard as a complete substitution for the hand-made Notice of Appeal, we are in no doubt that the scope of this full hearing is limited, as Mr Basu suggests, to consideration of stage 2. So we are bound by the findings of the Employment Tribunal that the Applicant's claim was misconceived, and that costs should be awarded and that the Applicant had acted in a vexatious way. The issue then for us is whether the Employment Tribunal erred in law in the exercise of its discretion.

The parties

9. The EAT under Ms Slade QC described some of the background to the Applicant's case which can be read with this judgment. A further insight can be given, by way of background only, by reference to the judgment of Burton P, sitting alone to hear an application on a full hearing under Rule 3(10) of the Employment Appeal Tribunal Rules on 27 January 2003. In that case the Applicant, a lay magistrate, had appealed against the striking out for deliberate refusal to comply with the Employment Tribunal's directions, and an order for costs in respect of that Originating Application. The linkage between the two occurs in relation to the President's treatment of the Applicant's perception of the authority Corner v Buckinghamshire County Council [1978] ICR 836. The President indicates that the Applicant misconceived the reasoning of that case and further, having stood "firmly on his misconception even before me today, has continued to pursue his case on ..." the wrong basis. Further, at an Appeal Tribunal which I presided over on 18 October 2002, the Applicant appeared in person, in order for us to deal with one aspect of the appeal before the Slade EAT which that EAT had not reached on the day. The result was that the Applicant did not have a reasonable prospect of success and, therefore, was not allowed to take his case to a full hearing.
10. The Employment Tribunal had been dealing with a number of claims out of a total of 12 and now, apparently, increased by one more, in various fora.
11. The factors which the Tribunal took into account are each challenged by Mr Brittenden in the very full Skeleton Argument which he has presented, and for which we are grateful. He contends that the Employment Tribunal took into account irrelevant considerations which infected the decision to award costs; that insufficient reasons were provided in support of the exercise of its discretion and that the Tribunal's approach is perverse.
12. Dealing firstly with reasons, these are partly the subject of the judgment by the Slade EAT, for that EAT held that the findings in paragraph 68 could not be considered to be perverse. The question was whether those now unchallengeable findings should have been rehearsed in the Tribunal's judgment when it came to costs. That approach is obviously of assistance for it allows us to reach back from paragraph 68 into the other parts of the Tribunal's reasons, so as to be assured that there was a proper basis for those findings, and then to proceed to consider whether those findings were relevant in its assessment of the claim on costs.
13. We have had no submissions about the duty of a Tribunal to give reasons in relation to costs. We are aware that a different approach applies to costs issues from substantive reasons, but this matter has not been argued before us: see, for example, English v Emery Reimbold [2002] 1 WLR 2409.
14. We are content, for the purposes of this appeal, to operate on the normal basis that a Tribunal should give reasons which are exigible for a decision which it makes on costs especially when departing from the normal no-costs regime in Employment Tribunals. In our judgment the reasons which the Tribunal gave are clear. The only question is whether the matters cited are relevant to its consideration. We accept the arguments presented in a Skeleton Argument by Mr Basu, to whom in turn we pay tribute, and we did not call upon him to address us. Each of the matters buttressing the Tribunal's decision on costs was relevant in its decision and, indeed, some of those reasons are illuminated by the President's (unappealed) depiction of the Applicant as being misconceived in his approach to one of the authorities relied upon by him in the instant case.
15. We can find no fault in the approach of the Tribunal. We bear in mind that we are considering the exercise of discretion, and the high threshold which applies to an Appellant seeking to challenge it as being perverse or as being based upon irrelevant considerations. When considering the whole of paragraph 68 we cannot say that the Tribunal made a decision which was wrong in principle or perverse when it decided to award costs. It then moved on to decide the amount of costs and rejected the Respondent's claim for a detailed assessment. Capping the sum at £10,000 which was the maximum in place, in respect we think of each individual claim. That has not been the subject of a cross-appeal by the Respondent. We thus dismiss the appeal.

Costs Application

16. An application has been made on the basis of all four heads within Rule 34, that the Applicant should pay the costs of the Respondent in the appeal.
17. The costs amount to £13,798.61, although some discount would be made because the case has gone short.
18. It is contended that this litigation is part of a campaign by the Applicant against Marconi in the EAT, the Employment Tribunal and the County Court. It goes on. Costs have stacked up. A letter "Without Prejudice save as to costs", directed yesterday between the solicitors indicated the additional costs which would be incurred today, and drew the attention of the Applicant's solicitors to the fact that an application would be made if the appeal were dismissed.
19. It was contended that, although this case had been permitted to proceed by Ms Slade's EAT, that is not a vaccination against the award of costs at a full hearing.
20. On behalf of the Applicant it is contended that it was not clear exactly what the scope of the appeal would be following Ms Slade's judgment. We had no difficulty in understanding the scope. It is also contended that Ms Slade's Tribunal did allow this matter to go forward and took the view that there was a reasonably arguable point on costs. Individual attacks are made as to the scale of the costs incurred.
21. In our judgment this case comes close to an award of costs but fails. We take the view that it will often be the case that once an Appeal Tribunal has allowed a matter to go forward, an award of costs would not be made, but there are cases where intervening events, including the Respondent's answer and correspondence, may well cast a different light. The Applicant has failed in his claim against the exercise of discretion here, but we do not fit his conduct into any of the four combined categories in Rule 34.
22. We do however, make it clear that there is much force in Mr Basu's argument that the Application is engaged in a litigation campaign, not one aspect of which has succeeded before Employment Tribunals or on four occasions before the EAT, or before the County Court. Litigation is part-heard and we say nothing about and, indeed, know nothing about the nature of that litigation, but Mr Edwards must bear in mind how close he has come to an award of costs in this case, and the criticism made of Mr Edwards' perception of the law by Mr Justice Burton, when he heard his appeal.
23. The Applicant is already under the burden of an unsuccessful appeal against the order of costs of £500, added to which is the award of £10,000. We understand he has awards against him in the County Court. We will not add to that burden but we make it clear that, if there is evidence of further activity which is misconceived or vexatious, as has been upheld in this appeal, and in the appeal to the President, it will be proper for Marconi to draw this matter to the attention of the appropriate Court and of the Lord Chancellor who supervises the conduct of magistrates.
24. We are grateful to both Counsel for the expeditious way in which they have handed the proceedings today.