United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR RICHARD O'DAIR (of Counsel) Instructed by: Messrs Bryant Hamilton & Co Solicitors Ibex House Minories London EC3N 1DY
For the Respondent	MS I SIMLER (of Counsel)

SUMMARY

Practice and Procedure

Employment Tribunal concluded that the criteria for the making of a costs order (misconceived proceedings: unreasonable conduct) existed and that a costs order would be made in favour of the Respondent which had produced costs schedule of £28K: but then, with exiguous reasons ("taken in the round") awarded £750. Only two out of three ET members are still available. Referred back under Burns for reasons to be given (or review on ET's own motion), adjourning appeal and cross-appeal, to the two members, with new Chairman.

Emphasis of the need to consider at the sift stage, rather as here waiting for a full hearing, the operation of the Burns procedure.


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This is a very unfortunate case. It is an appeal in relation to costs and that is, of course, something which is regrettable because all substantive matters between the parties have been resolved. But, nevertheless, as Lord Phillips MR said in English v Emery Reimbold & Strick Ltd [2003] IRLR 710 at paragraph 14:

"It is an unhappy fact that awards of costs often have greater financial significance for the parties than the decision on the substance of the dispute."

2. This is a case which took three days before the Tribunal, 10, 11 and 18 July 2003, and in which, save for a small sum agreed by consent, the Applicant's claim against the Respondent firm, D Bryant Hamilton & Co, failed. The Respondent's bill of costs was some £28,000 and it is that sum which they sought to recover, or at any rate an award based upon that sum, against the Applicant.
3. The Tribunal, in circumstances to which we will refer, awarded costs, but only in the sum of £750. It is against that award which the Respondent now appeals. There is a cross appeal by the Applicant on the basis that no award at all should have been made.
4. The claims, with which we have not sought to become familiar, before the Tribunal were for wrongful dismissal, breach of contract and unauthorised deduction from wages. The bulk of the time was taken, as one would expect, in respect of wrongful dismissal and breach of contract. There was a claim in respect of unauthorised deduction from wages, which was based upon a claim which was similar to that put forward, as we understand it, in the breach of contract claim, that the Applicant was entitled to be paid in respect of billable hours, notwithstanding the words of her contract of employment letter, which provided for billed hours forming the basis of her entitlement. The Applicant failed in that regard.
5. So the only sums that were due were those based upon the Respondent's own construction of the contract. The Respondent had sent a letter in an attempt to settle the case, dated 2 June 2003, in which they calculated the sums due based upon their construction of the contract, which the Applicant was disputing, as we have said, as coming out at £954.74. The sum which was eventually agreed by consent to be paid at the hearing was £1,504 in respect of outstanding bonus payments, but based on the Respondent's calculations.
6. In those circumstances the vast bulk of the claim by the Applicant failed. The case that was made by the Respondent in respect of their application for costs based on their schedule, to which we have referred, was for what was recognised to be the exceptional jurisdiction that the Employment Tribunal has under paragraph 14 of Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 to be operated in their favour. Rule 14 (1) reads as follows:

"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 the other party"

7. The procedure in respect of the Order varies depending upon what sum was being sought. By subparagraph (3) of Rule 14 the following provisions are made:

An order containing an award against a party ("the first party") in respect of the costs incurred by another party ("the second party") shall be -

(a) where the tribunal thinks fit, an order that the first party pay to the second party a specified sum not exceeding £10,000;

(b) where those parties agree on a sum to be paid by the first party to the second party in respect of those costs an order that the first party pay to the second party a specified sum, being the sum so agreed; or

(c) in any other case an order that the first party pays the second party the whole or a specified part of the costs incurred by the second party as assessed by way of detailed assessment (if not otherwise agreed)."

8. We understand that in this case Mr O'Dair of Counsel who has appeared before us and also appeared below, where the Applicant was unrepresented although she has been represented before us by Ms Ingrid Simler of Counsel, the Respondent asked for costs by reference to its schedule; and that nothing specifically was said as to which subparagraph, be it (a) or (c) of Rule 3, would apply (plainly not (b) as there was obviously no agreement); and that it was the implication of such application for costs that if the order that the Tribunal were to make would otherwise exceed £10,000 then there could be no summary order - the costs would then have to go on for detailed assessment - but that if it was £10,000 or less, it could be awarded summarily.
9. The major argument, as one would expect, will have taken place on the basis as to whether costs should be awarded at all, in the sense as to whether the circumstances justifying the unusual exercise of discretion by a Tribunal to award costs, arose. The case that was put by the Respondent was that the bringing or conducting of the proceedings by the Applicant had been misconceived and/or that the Applicant in bringing or conducting the proceedings had acted unreasonably.
10. So far as 'misconceived' is concerned, that is defined, for the purposes of the Rules, by the Regulations, by Regulation 2 (2), which is one of the definition sections for the purposes of the Regulations and the Rules. The word 'misconceived' includes "having no reasonable prospect of success".
11. The Tribunal concluded that in relation to the two claims which had taken up the bulk of the time, both the claim for repudiation/constructive dismissal leading to a claim for unfair dismissal, and the claim for breach of contract, those proceedings were misconceived, and consequently that the Applicant had brought misconceived proceedings, namely proceedings which had no reasonable prospect of success.
12. The Tribunal's reasons are set out at suitable length. At paragraph 11, the Tribunal dealt with the question of repudiatory breach, and concluded that the letter which had been sent by the Respondent, far from being repudiatory, was "written in a constructive, reasonable, fair and caring manner." The Tribunal concluded:

"…looking at that letter and judging it objectively the Tribunal could find no reasonable basis on which it could be said that anything in that letter amounted to or could reasonable amount to a repudiatory breach of the implied term of trust and confidence."

13. Then in paragraph 12 it turned to the Respondent's conduct and again concluded, having in mind the statutory test in the Rule of 'misconceived' that it included "no reasonable prospect of success":

"The Tribunal does find that there was no reasonable prospect of the Applicant succeeding in providing repudiatory breach."

14. It then turned to the question of the claim based upon billed hours and in paragraph 13 concluded that the contract of employment was clear, that it was:

"trite law" that, where the parties had submitted their agreement in writing"

[and in this case both parties were solicitors]

"and signed it the express words were of essential importance, and it was only in circumstances where perhaps a word might be ambiguous that there is some necessity to imply a term to give the actual explicit word a different meaning"

and that there were no such circumstances or such reasons, and the view of the Tribunal is:

"…without hesitation, that the contentions by the Applicant that the word 'billed' was to be interpreted as meaning billable or properly billed is, in the context, misconceived."

15. So far as the third aspect is concerned, that is the claim, as the Tribunal puts it, in debt, that is addressed in paragraph 10:

"With regard to the disparate claims in debt those claims were well conceived, they did not take up a great deal of the Tribunal's time, the Respondents were always it appears to us in principles prepared to accept that. It was simply going to be a matter of computation and they sought, in two letters, to set out what they thought would be claimed on the basis of billed hours [that is a reference to the letter of 2 June 2003 and an earlier letter of 7 May 2003]. The other two matters occupied the Tribunal for some considerable time.

By implication the matter which was eventually agreed in the sum of £1,504 did not. The Tribunal indeed concluded at the end of paragraph 15:

"The Tribunal have little doubt that the Respondents, as they have throughout, would have responded reasonably, if not generously, to counter quantification by the Applicant [in response to the letter of 2 June].

16. There were thus findings, in relation to the two claims which had occupied the bulk of the time before them, that both were brought without reasonable prospect of success, such that the Applicant had in those circumstances brought claims that were, within the meaning of Rule 14, misconceived.
17. The Tribunal did not leave it there, because it also addressed the case made by the Respondent that there had been unreasonable conduct in the conducting of the proceedings. It did reject, in paragraph 14, the suggestion that it was unreasonable for the Applicant to reject the offers, although the Tribunal had found that her case was misconceived on the two main points, on the basis that the Tribunal:

"…has no doubt that the Applicant genuinely believed that she had a case at that point and the test is not whether she failed to accept a reasonable offer, but whether she acted unreasonably in not accepting that offer.

That conduct was not found by the Tribunal to be unreasonable.

18. However, in paragraph 15, the Tribunal concluded that it was unreasonable conduct not to have replied to either of the two letters, not for the purpose of accepting them, but for the purpose of responding to the Respondent's case on billed hours as to the basis for quantification of the bonus. The Tribunal concluded:

"It would have been of assistance to the Respondents and may well have shortened this case if the Respondents had known, certainly after early May when the Applicant was in possession of the relevant documentation, just what it was that the Applicant was seeking… That information was available to her and the parties would have been in a position to agree a quantum if it was billed hours. On the other hand, so far as billable hours were concerned, the Applicant must or ought to have known what her case was on the question of billable hours. The Tribunal has heard nothing to suggest to them that the Applicant was not in a position to quantify what her claim would have been in terms of billable hours. We accept that there was no specific order for the Tribunal, but in the context of the parties, and the Respondents in particular, trying to avoid the great expense of these proceedings, the Tribunal does feel that it was unreasonable for the Applicant not to respond and indicate what it was she was actually seeking."

The Tribunal then added the remark which we have already quoted about the likely response from the Respondent had that occurred.

19. Thus, there was one aspect of the case which the Tribunal concluded had consisted of unreasonable conduct by the Respondent, namely the lack of particularisation of her case on billed or billable hours which might have led, at any rate, to earlier agreement of the billed hours than in fact occurred. It would not appear to us that very much in terms of time hangs on that particular unreasonable conduct.
20. There is, however, another aspect in which the Tribunal found unreasonable conduct, and that is set out in paragraph 16:

"The Tribunal was concerned as to the length of questioning by the Applicant. The Applicant is a litigant in person but she is a solicitor. Many of the questions went to matters which were not relevant to what the Tribunal had to decide at the end of the day and the Tribunal, through the Chairman, did from time to time seek and invited the Applicant to come back to the issues. The feeling of the Tribunal is that these proceedings have gone on much longer than they ought to have done because of the Applicant's behaviour. The Applicant did conduct the proceedings in a way which was "otherwise unreasonable".

No indication is given by the Tribunal as to what length of time was thus wasted by the Applicant's excessive cross-examination.

21. In those circumstances the Tribunal was prepared on the basis of misconceived proceedings, as described, and, in relation to the two identified aspects, unreasonable conduct of those proceedings, to make an order. It is clear that that founds a jurisdiction to make an order, as set out in paragraph 14 (1), because the Tribunal was therefore of the relevant opinion. The Tribunal was then required to consider making and, if it so decides, may make, an order. It did.
22. The conclusion that the Tribunal reaches as to the amount is exiguously expressed in paragraph 17:

"In the exercise of the Tribunal's discretion as to whether it ought to make any order, the Tribunal is in no doubt that it would be just to make an order of costs against the Applicant."

That is a plain conclusion that the Tribunal will exercise its discretion to make an order, and one which, on the reasons set out by the Tribunal, was both rational and explained.

23. There is then one sentence alone in this entire decision which has formed the fulcrum of the appeal before us:

"The Tribunal has looked at the quantum in the round, and in this case the appropriate sum is £750."

That is the first and most seriously unfortunate thing about this appeal.

24. We do not need to look at the well-established principles in this court about the giving of reasons, exemplified in Meek v City of Birmingham District Council [1987] IRLR 250, because it is well-established that any court, never mind Article 6 of the European Convention on Human Rights, but as a matter of well-established rules of natural justice, is obliged to give reasons for its decisions. That is what distinguishes a court of justice from a court of administrative decision making.
25. But as it happens, in the English v Emery Reimbold case (to which we have referred, and which is the most recent and seminal source of the emphasis by the courts of the need to give such reasons), one of the cases that was being considered conjointly by the Court of Appeal was a case in which an unreasoned order for costs was made, and in the same paragraph, paragraph 14, from which we have already quoted, the question of costs was addressed by Lord Phillips MR beginning with the unhappy fact (to which we have already referred). He then said as follows:

"Decisions on liability for costs are customarily given in summary form after oral argument at the conclusion of the delivery of the judgment. Often no reasons are given. Such a practice can, we believe, only comply with Article 6 if the reason for the decision in respect of costs is clearly implicit from the circumstances in which the award is made. This was almost always the case before the introduction of the new Civil Procedure Rules, where the usual order was that costs 'followed the event'. The new rules encourage costs orders that more nicely reflect the extent to which each party has acted reasonably in the conduct of the litigation."

26. All that, of course, is a reference not to our specific procedure, but to the Civil Procedure Rules 1998, which are of course very different. But it certainly reflects the position that if a costs order is to be made in these proceedings then the identification of the respect in which there has been unreasonableness, or one of the other categorisations of conduct which can lead to a costs order, has first been identified. Lord Phillips MR then continued:

"Where the reason for an order as to costs is not obvious, the Judge should explain why he or she has made the order. The explanation can usually be brief."

Brief is one thing, but this sentence which we have quoted is not even brief.

27. That is the first respect in which this case is unfortunate, as we have indicated, and of course it forms the fundamental basis of this appeal.
28. The second respect in which this is unfortunate arises out of what appears to have happened at some stage after the delivery of what in fact were Summary Reasons, as we understand it, for the decision of the Tribunal, sent to the parties eventually on 21 January 2004. What appears to have been the position is that what we have now as reasons, and described as Extended Reasons, were originally the Summary Reasons. The Chairman, Mr R Wilson QC, at some stage ceased to act or be available as a Chairman, and the two lay members, Mrs M A Brooks and Mr K Sonnet, doing the best they could in attempting successfully to help the parties and this Tribunal, simply approved the Summary Reasons as the Extended Reasons, signing the document accordingly. That may be a reason why the Reasons are so exiguous and it may be that, had Extended Reasons in the usual form followed, more might have been said as to the decision set out in paragraph 17. But it was not.
29. Ms Simler has properly pointed out the difficulty which the existence of Summary Reasons can cause to this Appeal Tribunal and we do of course have the discretion to allow an appeal to go forward on Summary Reasons, but it is not normally, at any rate willingly, exercised and great lengths are gone to to seek to persuade an Employment Tribunal, very often way out of time, to produce Extended Reasons, just because this Appeal Tribunal needs to have the best ammunition supplied from the Tribunal below to decide a difficult appeal. But in this case we do have Extended Reasons. The unfortunate fact, however, is that they are in identical form to what were previously Summary Reasons, and it is no fault of the parties that that is the case.
30. The third unfortunate fact is that, for whatever reason, when this matter came to be sifted at the Employment Appeal Tribunal it was sifted straight through to a full hearing by Order dated 18 March 2004, rather than at that stage the course being taken which we have been operating since the new Practice Direction by reference to English v Emery Reimbold and which has been explained most recently in the reported decision of Burns v Consignia plc (No. 2) [2004] IRLR 425.
31. It is very often useful where the appeal is based upon inadequacy of reasons, or absence of one or more findings, for the appeal to be sent at the earliest stage, as indeed is encouraged in English v Emery Reimbold, for such reasons to be given, if there are such reasons or such findings to be made, if they can be made on the basis of the existing notes of evidence by the Tribunal below, in order to avoid what has occurred here, namely a case going forward to ultimate appeal, only for that course then to be taken. I would emphasise the importance of considering the operation of the Burns procedure at the sift stage in such a case, rather than waiting for a full hearing, with further expenditure of cost and delay.
32. Against the background of these unfortunatenesses, we address the problem today.
33. There is a cross-appeal, as we have indicated, before us by Ms Simler which is put on two bases. One is (and this really is only the mirror image of the challenge by the Respondent) that there ought to have no award of costs, within the discretion of the Employment Tribunal, notwithstanding its findings as to the conduct of the proceedings and of the Appellant. But Ms Simler would seek to go further, by way of cross-appeal, and to challenge the conclusion that this was a case in which Rule 14 was satisfied.
34. It appears to us very difficult for that argument to be successful. So far as the conclusion is concerned, that the Applicant acted unreasonably, no point of law is even raised in that regard and it seems to us quite plainly that that is a matter for the industrial jury who heard the case to decide.
35. Ms Simler has sought, in relation to her argument that it was inappropriate for there to have been a conclusion that the proceedings were misconceived, to run an argument that that should be a subjective test rather than an objective test, and that it is not open for a Tribunal to conclude that the bringing or conducting of proceedings were misconceived if there was a genuine belief in the need to bring them; and if that be right, then she points to the view of the Tribunal expressed in paragraph 14 of the subjective position of the Applicant, which we have quoted above.
36. Our provisional view, however, is firmly that that is an argument that is unlikely to succeed. It appears to us that questions of subjectivity arise where the issues are whether someone is bringing or conducting proceedings unreasonably. The question, however, as to whether the bringing of proceedings was misconceived is, in our judgment, one which hangs, or at any rate is almost certainly likely, because we have not heard concluded oral argument, to hang, on the simple question as to whether the proceedings which were misguided, were proceedings which had no reasonable prospect of success. That is specifically a different category from the unreasonable category and, when recently added to the armoury of powers of the Employment Tribunal it was specifically in order to catch such a situation. The words of Sedley LJ in Gee v Shell UK Ltd [2003] IRLR 82 must be expressly read on the basis that he himself said at paragraph 35 that the views he was expressing in that case did "not concern the ambit of the recent amendment to include 'misconceived' proceedings."
37. We would and could have concluded argument, at any rate in relation to that part of Ms Simler's submissions, but we have not; because this appeal has concentrated solely in the event on how to deal with the total absence of reasoning in relation to the appeal itself, with the concomitant direct cross-appeal, to which we have referred.
38. Ms Simler suggested in her submissions, subject only to her primary point, with which we have dealt, about the absence of Extended Reasons, that this case should even at this stage go back to the Employment Tribunal, pursuant to the Burns v Consignia procedure, normally operated at an earlier stage, either on the sift or at a preliminary hearing.
39. There are plainly problems in that regard:

(1) We are extremely anxious not to expand the expenditure of costs which has already spiralled in relation to this case, both by virtue of the £28,000 spent by the Appellant at the original Tribunal - we do not know whether the Applicant expended any costs, but she certainly was representing herself at the hearing - but now also, although the Applicant has the benefit of Ms Simler's services, we understand it, pro bono, both sides' costs in relation to this appeal. We are anxious, if it can be avoided, not to prolong and exacerbate that expenditure.

(2) The problem, to which we referred, of the unavailability of Mr Wilson QC continues and if we were or are to send the matter back on any basis it would be to a Tribunal which would contain, because we understand them both to be sitting, the two lay members, but they would need to be chaired by a fresh legal Chairman. That appears to us not to be, and indeed neither party has submitted that it is, a specific hurdle, because the lay members will well remember what occurred and will have a full grasp of the hearing, and their determinations and discussions will be helpfully chaired, and valuably chaired, by an independent lawyer, albeit not one who, at any rate to start with, has knowledge of the case, but would plainly quickly acquire it with the benefit of the views of the lay members. That in itself, therefore, does not stand in the way of our operating what Ms Simler has suggested.

40. The course has been vigorously opposed by Mr O'Dair. He reminds us of the expenditure of costs. He forcefully reminds us of the findings by the Tribunal which we have summarised and which he submits can only lead to a conclusion that, at any rate, a substantial award of costs should be made in favour of the Respondent. He also warns, as is always the case in this kind of situation, of the risk of giving a Tribunal the second bite of the cherry, driving them to come to the same conclusion if they possibly can.
41. We are not persuaded by him, notwithstanding his advocacy. We are not persuaded for the following reasons:

(1) We are clear that the overwhelming likelihood, if not certainty, is that if we heard this case in full we would come to the same conclusion, namely that we should send this back to the Employment Tribunal who had heard the case, or at any rate two thirds of whom had heard the case. There is no-one who will know better what costs should be awarded, what conduct there was which was unreasonable, why the proceedings were misconceived, and above all, why the sum of £750 was apparently awarded, than the Tribunal which heard the case. If that was to occur at the end of the hearing, with a formal remission on the quashing of the decision, then, subject to what we are about to say, almost the same result would be occurred as by our operating Burns v Consignia, namely a referral back at this stage with an adjournment of this appeal.

(2) In that context, we invited Mr O'Dair to address us as to what order he would be submitting should be made on a conclusion of this appeal, if it were not remission to the same Tribunal.

42. Two matters plainly arise. One is that no argument was canvassed by him suggesting that if this were remitted it should be remitted to a different Tribunal, and always subject to the risk of the second bite of the cherry, to which reference has been made by Lord Phillips MR in English v Emery Reimbold and by this Appeal Tribunal in Burns v Consignia, and reminder of which must always be given whenever this procedure is operated, there is no reason why in this case the matter should not be remitted to the same Tribunal.
43. There are cases in which considerations arise which drive the remission to be to a different Tribunal, where for example the original decision was completely flawed, or where there are allegations or worse of bias or misconduct by the original Tribunal. But in this case, as we have indicated, nothing could be more sensible than to send it back to the Tribunal which heard this case. It is always sensible for a decision on costs to be decided by the Tribunal which has heard the substantive case, certainly one which has lasted more than a few moments.
44. The second matter, however, as to which Mr O'Dair specifically addressed us was that he did not accept that the inevitable outcome of this appeal would be remission viz to the same Tribunal, but that he would be inviting us, and did, in his short submissions to us on this topic, invite us, to contemplate substituting our own decision, rather than sending the matter back.
45. It is plainly sensible where costs are at stake to endeavour to avoid further expenditure of costs, as we have already said; and there may be many cases in which both parties invite an Appeal Tribunal to take that course, particularly if it is a matter of costs and the only dispute between the parties is as to assessment of them; we have, as Mr O'Dair has pointed out, all the powers of the Employment Tribunal, including the power to send the matter for assessment to the County Court. However, he would need to persuade us that in the absence of agreement, which there plainly is not in this case, at any rate at this stage (there may be agreement at a later stage and we hope there is) as to whether, absent agreement, we would be likely to be in a position to decide the question ourselves without remission back at the end of an appeal.
46. The well-known authorities in this regard are O'Kelly v Trusthouse Forte plc [1983] ICR 728 and Hellyer Brothers Ltd v McLeod [1987] ICR 526. The principles are that the Employment Appeal Tribunal will only not remit the matter to a Tribunal where it can be satisfied that no reasonable Tribunal would come to any other conclusion, when it can be sure what the remitted Tribunal would do.
47. When asked what it is that Mr O'Dair would wish us to order and to say would be the inevitable result, or nearly inevitable result, if the matter was sent back to a Tribunal, his first proposition was that no reasonable Tribunal, having made the findings it did in this case, would do other than award the sum of £15,000.
48. When that was pointed out by Ms Simler to exceed the amount that this Tribunal, exercising the powers of the Employment Tribunal, could do by virtue of Rule 14 (3) (a) and (c), then his alternative suggestion as to what no reasonable Tribunal would do otherwise than, would be to make an order that the Applicant pay half of the costs of the Respondent, to be assessed if not agreed.
49. We are entirely clear that, not just because Mr O'Dair himself is unable to be satisfied as to what it is that no reasonable Tribunal would do otherwise than do, we cannot be sure what the right order would be and that if we heard the oral expansion of the submissions that we have read in writing, we would not be, in a position to reach a conclusion as to what that Tribunal would be bound to do. We are in no position to reach a conclusion ourselves, still less to be sure as to what a conclusion of the Tribunal which originally heard the case, or to which it would be remitted, would decide, if it were not £750.
50. In those circumstances, the inevitable outcome of this appeal would, in our judgment, be a remission to the same Tribunal. We conclude that, in order to avoid a fuller hearing of the appeal, and in order to preserve best the positions of both parties, the right course is to adopt Ms Simler's suggestion at this stage.
51. We have expressed our view as to the unlikelihood of Ms Simler's cross-appeal with regard to construction succeeding, but her position in that regard is at least preserved. But so also is the position of both parties, for the following very important reasons, which we pointed out in Burns v Consignia. The great advantage of the Burns v Consignia route is one which was not even available to the Court of Appeal and the High Court in English v Emery Reimbold, namely that, unlike the High Court, the Employment Tribunal has the power of its own motion to review its own decision. Consequently, when, as we intend to do, we send the Tribunal this matter back to ask the question as to what were its reasons for arriving at the sum of £750 so that it can be seen whether it had any reasons at all, and if so whether those reasons can be regarded as valid in law, we also expressly give the opportunity for the Employment Tribunal, if it looks at this £750, order, gulps and realises that it cannot think of any reasons to justify it, or cannot remember what its reasons were, then it has the power to review of its own motion; and in those circumstances, the best possible Tribunal, as we have indicated, is the Tribunal which heard the substantive case and reached the conclusions it did, which we have summarised earlier in this judgment.
52. When considering the order it made for £750 in the round, there may or may not be reasons along the following lines, always remembering the conclusions it made as to the proceedings being misconceived, and the amount of costs claimed and scheduled by the Respondent of some £28,000, such that the following may be possibilities:

(1) Was the order of £750 a contribution towards the costs of the Applicant? If so, on what basis? Did it balance the fact that the two claims which the Tribunal had found to be misconceived, albeit the bulk of the claims, fell to be offset to some extent, and if so to what extent, against the fact that the £1,504 was more than had been offered in the 2 June 2003 letter, and if so, what effect, if any, did that have?

(2) Was the £750 an assessment of some part of the costs, or of some part of the hearing, or of the proceedings? If so, on what basis?

(3) Was there some doubt in the mind of the Tribunal as to the total recoverability of the £28,000? In which case, what sum, if any, fell to be deducted?

(4) Was there some consideration of the fact that the maximum that could be summarily assessed was £10,000? In which case, what was the relevance, if any, of such thought process?

(5) Was some sum notionally deducted from the costs which would otherwise have been awarded, either on the basis of some kind of consideration of the means of the Applicant, which would of course appear to be, if in fact adopted, unlawful if Kovacs v Queen Mary & Westfield College [2002] IRLR 414 is addressed? Or was there some consideration, and if so what, of any alleged ill-health of the Applicant, and if so, on what basis, particularly given the absence of any medical report or of any application for an adjournment?

53. If the Tribunal had reasons, which it can formulate, then it can and should do so. If, on the other hand, on looking again at the award that it made, it considers that it should review the case of its own motion, then it has the power to do so.
54. This appeal is consequently adjourned, pending the response of the Employment Tribunal, which we would request, if at all possible, to be given within two months of today, and once given, then it will be restored and, if not restored by 4.30 pm on Friday 15 October then it will, in any event, be restored for further consideration by the Employment Appeal Tribunal on paper.
55. But once the Tribunal's response has been given, then there will be the power for further consideration, either on paper by this Employment Appeal Tribunal, if the parties so agree, or by reconstitution of this Employment Appeal Tribunal, with the same constitution if at all possible, for further hearing. Clearly the parties could agree matters, particularly in the light of any further reasons from the Employment Tribunal or a review; that would be most desirable. Alternatively, the parties are free, as we have indicated, to agree that any further consideration, in the light of the decision of the Employment Tribunal, by this Appeal Tribunal can be on paper.
56. It remains to say that the Employment Tribunal in its consideration, at any rate in the first instance, is not asked to take any further evidence, or anything of that kind, but the parties will be free to supply to the Employment Tribunal the Skeleton Argument and amended Notice of Appeal and amended Answer in the appeal, if it considers that the Employment Tribunal will be assisted by those papers, as we consider they would; or to provide any further written submissions on the basis that they will be lodged and exchanged. But we do emphasise the desire to save costs. If, of course, the Employment Tribunal decides to review of its own motion then the procedure to be adopted by the Tribunal on such review we leave entirely to the Tribunal.
57. On that basis, we made an order for referral back to the Employment Tribunal, within the timescale we have indicated, in order to answer the question "what were the reasons for the award of £750 referred to in paragraph 17?" on the basis that the Tribunal is free of its own motion, if so advised, to exercise its option to review.