United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ROBIN ALLEN QC (of Counsel) Instructed by: Messrs Dean & Dean Solicitors 21 Gloucester Place London W1U 8HR
For the Respondent	MR DANIEL TATTON-BROWN (of Counsel) Instructed by: Messrs Moreland & Co Solicitors Moreland House 5 St Michael's Terrace London N22 7SJ


 


SUMMARY

PRACTICE AND PROCEDURE: Costs

The Employment Judge did not err in principle or omit a relevant or consider an irrelevant factor when dismissing Respondents' applications for costs when much of a sex discrimination case was struck out.

HIS HONOUR JUDGE McMULLEN QC

1. This case is about costs. I will refer to the parties as the Claimant and to the Respondents, generally, or as the firm, and Dr Mireskandari, as appropriate.

Introduction

2. A general description of the relationship between the parties in this case was given in a judgment I gave on 25 April 2008 sitting at Central London County Court. Since one of the criticisms of the Employment Judge in our proceedings is that she failed to look at the litigation in context, reference must be made at least to understand some of the introductory matters in the relationship to pages 2 to 4 of my judgment.
3. The present appeal is brought by the Respondents in those proceedings against a judgment of Employment Judge Lewzey sitting over two days at a CMD at London Central, reasons for which were registered on 1 October 2007. They were part of a PHR which had begun on 6 September 2007 for which reasons were registered on 11 October 2007. The Claimant was represented by Counsel and today has the advantage to be represented differently by Mr Daniel Tatton-Brown. The Respondent was represented by leading Counsel and today, too, by different leading Counsel, Mr Robin Allen QC.
4. The Claimant made a very substantial number of complaints, almost all of which were dismissed or withdrawn as against five Respondents in these proceedings. The judgment at the PHR was that the claims did not meet the conditions set out in the regime of the Employment Act 2002 because the Claimant had not, at a grievance meeting, set out the basis of the claims which she subsequently made against the Respondents. The Employment Tribunal had no jurisdiction. A small number of claims was allowed to go forward. They were ultimately withdrawn.
5. Two applications for costs in the order of £100,000, foreshadowed by previous correspondence, were made against the Claimant. The judgments on costs followed the oral reasons at the PHR. The applications were refused. The issue is this: did the Employment Judge exercise her discretion in a way which was wrong in principle, overlook a matter she should have taken into account or consider a matter which she should not, when she refused the Respondents' applications?
6. When the Notice of Appeal on behalf of the Respondents was dealt with at the EAT, HHJ Peter Clark, under Rule 3(7), opined it had no reasonable prospect of success and that the judge had acted correctly. Exercising their right under Rule 3(10), the Respondents represented by Mr Allen QC appeared at an oral hearing before me, at which, having carefully considered his skeleton and the succinct oral arguments he presented, I said the matter should go to a full hearing.
7. Shortly thereafter, I was sitting in Central London County Court and in my list appeared the other part of the proceedings which was a claim for breach of contract arising out of the Claimant's case that she had not been paid a commission on work she had done for the firm during her short career there. I was told by yet different counsel representing the parties that the claim was in excess of the statutory cap on the monetary claim in the Employment Tribunal which still is £25,000 and the claim, as I recall, was for about £31,000. The order has not finally been drawn up, but the effect of my judgment substantially in favour of the Claimant was that she would get about £18,000, therefore within reach of the Employment Tribunal jurisdiction.
8. Nevertheless, the case was conducted in the County Court over five days. During the course of that and in an order I gave at the EAT on the Rule 3(10) hearing, I directed the parties consider conciliation through ACAS here at EAT and/or some negotiated settlement, it seeming to me to be undignified that these practitioners of Family Law should be engaged fighting each other rather than fighting for their clients. Those directions came to nothing. As part of the Claimant's costs application there I found that the Respondents could not rely on any offer to settle. I am simply disappointed that lawyers were not able to negotiate, on behalf of themselves, a settlement of a legal case involving quite a lot of satellite litigation.

The legislation

9. The legislation is not in dispute. The first part of the legislation is described memorably by Underhill J, adopted by Elias P, HHJ Peter Clark and me in various judgments we have given as indicating that the 2002 Act regime is rebarbative in H M Prison Service v Dr Barua [2007] IRLR 4 para. 1. Its death knell has been tolled by ministers. This requires, in simple terms, that a claim weighed against an employer (it does not apply to other Respondents) should have been the subject of a grievance before its presentation to a Tribunal and, if not, the Tribunal has no jurisdiction. The consequences of failing to abide by the regime, which is set in place to encourage workplace resolution of disputes, are serious for both sides. I need do no more than to refer to Canary Wharf Management Ltd v Edebi [2006] IRLR 416 and Shergold v Fieldway Medical Centre [2006] IRLR 76 EAT.
10. In addition, Wilkie J has decided that the particular vehicle for presenting a grievance cannot be a claim form (see Gibbs v Harris UKEAT/0023/07, a judgment given orally on 27 February 2007). It is also clear that a claim of constructive dismissal cannot be made where certain aspects of it have not been the subject of a grievance (see Cyprus Airways Ltd v Lambrou, UKEAT/0526/06, a judgment I handed down on 1 May 2007). I mention those two dates because they succeed the presentation of the Claimant's first claim form in this case.
11. The other aspect of the legislation relevant to today's case concerns the powers of an Employment Tribunal or an Employment Judge to award costs (see the 2004 Rules, Rules 38 to 41). In particular, the power is contained in Rule 40 which says this:

"40. - …

(2) A tribunal or chairman shall consider making a costs order against a paying party where, in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he considers it appropriate to do so.

(3) The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived."

12. As to the amount of any award made, there is a cap of £10,000 which may be imposed at an Employment Tribunal. Thereafter, there should be a detailed assessment (see Rule 41). In the discretion to make an award and as to the value of an award, Rule 41.2 says this:

"The Tribunal may have regard to the paying party's ability to pay when considering whether it shall make a costs order or how much that order should be."

The facts relevant to the appeal

13. The Claimant, who worked for a relatively short period of time for the firm in its Family Department, left in what she claimed was a constructive unfair dismissal. This was a resignation in circumstances which she developed into being in response to various serious allegations she made against Dr Mireskandari and other matters. She conceded at the start of the County Court hearing that this was not a constructive dismissal.
14. The details of the claim and of the facts behind the case are not important because this is simply a costs issue and, given that the Employment Judge struck out or dismissed a large number of her claims, there has been no investigation of them. The applications made by the Respondents for their costs fell into two parts. The first was in relation to a withdrawal of complaints against the partners of the firm other than Dr Mireskandari. There were three named in the proceedings, Messrs Bell, Edwards and Hoffman. A fourth, Mr Tehrani, had been the sole proprietor of the firm and he was an equity partner of the firm at the time the Claimant left. He subsequently left to become a consultant.
15. Those three sought their costs £4,065. Since this first costs judgment is short, I can rehearse it.

"2.1 Mr Epstein, for the Respondents, applied for costs against the Claimant in respect of the withdrawal of the claim against Messrs, Bell, Edwards and Hoffman. The grounds for the application were that it was unreasonable conduct to bring proceedings against these three individuals because they were not said to be agents in any of the acts of discrimination alleged to have been committed by the First Respondent or any other person. No claims were made against the three individuals and order for costs covering the time spent by those three individuals was sought, against the Claimant, in the sum of £4,065.

2.2 Mr Pearman opposed the application for costs on the grounds that the claims had been properly pleaded against the three individuals named with Dr Mireskandari as the partners trading as Dean & Dean. The First Respondent was substituted for the three named individuals at the previous case management discussion and the reason for the inclusion of the three individuals was by virtue of the provisions of the Partnership Act. Mr Pearman argued that there was no material change and unreasonable conduct would have to be higher than this. He argued that the amount claimed was disproportionate and it was not right for the three individuals to claim costs as if they were solicitors acting for lay clients.

2.3 The Chairman considered the provisions of rule 40(3) of the Employment Tribunal Rules of Procedure 2004. The claim was brought against the three individuals who have been dismissed, and Dr Mireskandari together trading as Dean & Dean. The First Respondent was substituted at the case management discussion. The Chairman was satisfied that the issues would have been largely the same and it was difficult to see how the four individuals would have needed separate legal advice. The Chairman was not satisfied that this amounted to unreasonable conduct and in these circumstances made no order for costs."

16. The second application by the Respondents sought an order for a detailed assessment of costs in the county court of £95,783.61 following their application that the claims had no reasonable prospect of success and that costs should be awarded for the unreasonable conduct of the litigation. I will set out the learned judge's reasons for the second costs Judgment.

"3.3 The Chairman considered the application for costs under rule 40(3) of the Employment Tribunal Rules of Procedure 2004. The application is made on the grounds that those parts of the claims that were struck out had no reasonable prospect of success or were misconceived. This is a ground for making an order for costs and therefore the Chairman must consider the application and may make an award for costs. The Chairman took in account that she had struck out a large part of the Claimant's claim for the reasons given. However, it was clear that this was a case where both parties would contest each allegation. The Chairman noted that there had already been a warning at the case management discussion concerning the need to take into account the overriding objective. The issues before the Chairman on this occasion had not been easy, in a large part because of the unsatisfactory nature of the dispute resolution regulations. In addition part of the Claimant's claim in relation to victimisation will proceed to a hearing. The Chairman made no comment on the amounts set out in the Respondents' schedule.

3.4 The Chairman was not satisfied that this was a case where she should exercise her discretion to order costs… ."

The Respondents' case

17. The written submissions of Mr Allen opened unpromisingly for a sustained attack on the exercise of discretion for he said this:

"The appeal in a nutshell. The essence of the appeal is that Judge Lewzey has inadequately addressed the powers that she has under the ET Rules in the overall context of the conduct of the litigation by the Claimant."

18. Given that the attack on a discretion is based upon a consideration of the powers and of the exercise of the discretion, it does not immediately throw up a question of law: whether powers have been adequately addressed is a value judgment. But there is more to this than is contained in the nutshell and it probably shows the difficulty in trying to place anything in the protean litigation involving these parties into a nutshell. The Respondents' chronology extends to 13 pages.
19. In a further oral nutshell, it was said that the Claimant had made very serious personal allegations which had not been made in her first claim, so as to provide the match between the claims made at the Tribunal and in a grievance meeting. So this did not comply with the statutory regime and the Claimant, as a solicitor, should have known that.
20. As to the first costs judgment, adopting the argument advanced by his predecessor, Mr Allen contends that the judge was wrong and ought to have found that it was not reasonable of the Claimant to name all of the Respondents as she did. Although not going as far as an allegation of perversity, Mr Allen says the judge erred.
21. The substitution of the name of the firm for the three partners is misleading in that the claims against the three named Respondents, except for Dr Mireskandari, were withdrawn and the firm was put in. It is contended that the reasoning of the Employment Judge is completely inadequate and that the true reason for advancing claims against these three was simply to cause embarrassment to them.
22. Litigation conducted to exact revenge or for some ulterior motive is an abuse of process and this was what occurred in this case. It was completely unreasonable for the three additional Respondents to be cited. This was not a case where, providently, Claimants introduce additional Respondents where they are unclear such as often occurs where there is said to be a relevant transfer under TUPE 2006. The purpose of the statutory regime is to ensure, as in other litigation, that claims are not brought without some forewarning and that some procedural protocol should be in place.
23. The second judgment lacks any explanation which the parties are entitled to receive as to the result. Two matters considered by the Employment Judge were irrelevant: a claim of victimisation was proceeding to a hearing; and she felt the dispute resolution Regulations were not easy.
24. The whole purpose of the Claimant's sequence of litigation was to cock a snook in order to get her first case on foot. This must have been a conscious decision or the matters which she was complaining about were a fabrication.
25. The Claimant had herself now accepted that the matters which she sought to raise in the Tribunal, in particular, a serious allegation against Dr Mireskandari had not been raised at the grievance hearing,. The relief sought is that the decision should be set aside and an award of costs should be made with a detailed assessment by a costs judge. On the whole, this judgment failed to show proper reasons and it would not be right to resubmit them to the judge.

The Claimant's case

26. On behalf of the Claimant, it is contended that the Employment Judge was aware of the legislation which she was applying and of the discretion which she was exercising. The central allegation on the first costs application was that proceedings had been launched against the three additional Respondents simply to cause offence. But the true reason was that found by the judge, which was to do with naming the partners pursuant to the Partnership Act.
27. As to the second judgment, the Employment Judge had considered relevant, and not been misled by irrelevant, factors. It was accepted that if the Claimant had pursued her case to a hearing, the situation would be very different if allegations were unfounded but the judge here was looking at the matter at an early stage and those findings were not exigible. The judge was right to regard these Regulations as uneasy. If the matter were to be remitted to the Employment Tribunal, additional findings would need to be made since there is no finding and there appears to have been no evidence or argument relating to ability to pay under Rule 41(2).

Discussion and conclusions

28. During the course of argument, it appeared to be common ground that the threshold for consideration of whether an order should be made was met here and that the application was refused on the grounds of discretion. I first consider whether or not the relevant legislation was in the front of the judge's mind. This cannot be gainsaid. She cited the Rule. She has précised the purpose of the Rule which is to deal with claims which are misconceived and have no reasonable prospects (see Rule 2(1)).
29. She knew the context. Mr Allen says that the judge did have a substantial folder of all of the correspondence which has been produced before me as well. It must be recalled that she had an overview of the case. She had, after all, just read the order of Regional Employment Judge Latham, who had dealt with this matter on 14 June 2007 and set up the CMD. She had just heard the applications for strikeout, which had resulted very substantially in favour of the Respondents' submissions. She then went on to consider costs. Thus, it cannot be said that she did not consider these applications for costs without considering the context in which they had arisen. From the outset, the Respondents were going to seek costs if the Claimant proceeded.
30. The question on appeal is: did the Employment Judge "inadequately address the powers which she had"? I see no reason to criticise her for that, nor is it a question of law. She had the powers in front of her and it must be recalled what the scope of a judge on appeal is to the exercise of powers by a tribunal below. In Gardiner v Jay [1885] 24 Ch D 50 CA where Bowen LJ said this:

"In the first place this is an appeal from the discretion of the Judge, and although the discretion of the Judge with respect to the mode of trial is a discretion which ought to be exercised with great care, the Judge below, who has all the facts before him, has a certain margin of discretion, which ought to be left to him, and therefore appeals of this sort ought not to be brought except in clear cases. …

…That discretion, like other judicial discretions, must be exercised according to common sense and according to justice and if there is a miscarriage in the exercise of it, it will be reviewed, but still it is a discretion, and for my own part I think that when a tribunal is invested by Act of Parliament or by rules with a discretion, without any indication in the Act or Rules of the grounds upon which the direction is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the direction should run, for if the Act or the Rules did not fetter the discretion of the Judge why should the Court do so?"

31. That was a case where Pearson J had been criticised as to his choice of the mode of trial without a jury. In Beynon & Ors v Scadden & Ors [1999] IRLR 700, Lindsay P and members considered that that approach is plainly applicable to the exercise of discretion by an Employment Judge. Lindsay P said this:

"So in our case, whilst we shall examine the cases to which we have been referred, we must be at pains to remember, firstly, that those cases cannot fetter the jurisdiction as to costs conferred upon the employment tribunal by the rules and, secondly, we must avoid the common, error of construing the cases rather than the statute. The proper test for the employment tribunal was not whether its order accorded with this authority or that but, ultimately, to borrow the phrase from Morritt LJ, whether it was just to have exercised as it did the power conferred upon it by the rule. We must remember, too, that the test for us is different to that which was appropriate to the employment tribunal. We must not consider whether we would have ordered as the chairman did but instead ask ourselves whether the employment tribunal took into account matters which it should not have done, or failed to take into account that which it should have done or whether in some other way it came to a conclusion to which no employment tribunal properly directing itself could have arrived – see eg Carter v Credit Change Ltd [1979] IRLR 361 at 363.16."

Thus, extreme caution must be exercised on appeal when a judge has addressed the correct Rule and has exercised her discretion not to make an exceptional award of costs.

32. I agree with Mr Allen that the regime set up by the 2002 Act and the 2004 Regulations is there as a jurisdiction bar to make sure that parties take the opportunity to try and resolve issues between them. Although the CPR regime is not the same as that in the Employment Tribunal, the objective is. You should not bring claims unless they have been foreshadowed one way or another to the other side and you should not bring claims to assert matters outside the dispute, out of revenge or for some reason collateral to the dispute. In the employment field, costs are often threatened by Respondents but applications are rare, findings of unreasonable conduct are unusual and awards highly exceptional.
33. The first judgment relates to the three partners. I heard a good deal of "off the cuff" submission about what previous Counsel had told the Tribunal. It would not be right for me to delve into it in the light of the evidence which is before me and I will resolve this matter by looking at the reasons of the Employment Judge in the context of the litigation.
34. Here, the contention of the Claimant was that the three additional Respondents had been named by virtue of something to do with the Partnership Act. Mr Tatton-Brown told me, without objection from Mr Allen, that partnerships can be sued in their own name or partners can be named as well and in a small partnership such as this, that may well occur whereas it would not occur if it were a claim against a large City of London firm. Counsel was asserting that the reason for naming these partners was that they would share the responsibility for Dean & Dean as a partnership. True it is there is an anomaly in relation to Mr Tehrani, who also was an equity partner, and the Claimant omitted him deliberately from the proceedings, moving only against Dr Mireskandari.
35. The question is whether or not bringing in the additional three Respondents constituted unreasonable conduct. The Employment Judge was looking at the material with no live evidence. Whether there was unreasonable conduct such as to generate an award of costs was a matter of fact for her to decide objectively. What was the conduct? The conduct was bringing in the three additional Respondents. What made it unreasonable? It was said to be to expose them to embarrassment but the judge decided that the reason was to do with the provisions of the Partnership Act. That is a question of fact as well, having heard the submissions made by Counsel who had argued the point.
36. It cannot be said the judge did not have in mind the relevant Rule. She cites it. I agree that it is slightly misleading to talk about the substitution of the firm at the CMD because the firm was named on the claim form. But the effect is the same in that the firm and Dr Mireskandari are both Respondents and no other partners are. The firm is in because that was the employer and Dr Mireskandari because he is the alleged discriminator, a perfectly normal approach to litigation in an Employment Tribunal.
37. The primary finding is one of fact for her and not for the EAT and I do not accept that she has considered any irrelevant material or alternatively overlooked any other matter. Her finding as to the reason for the inclusion of these three Respondents is the answer to their allegation that they were brought in simply to be embarrassed. This ground of appeal is dismissed.
38. I turn, then, to the second judgment. The approach of Mr Tatton-Brown is correct. He has deconstructed, line by line, each of the elements in the case and it is instructive for me to adopt that approach too. The question is whether or not the Employment Judge erred in law when she did not award costs in response to the Respondents' application that this claim had no reasonable prospect of success and the way in which it was conducted was unreasonable and misconceived.
39. The judge has looked at the relevant Rule. Rule 40(3) is again cited in this part of the judgment. The definition is made clear and she acknowledges that where an application has been made, she must consider it and may make an award. It is now common ground that the claim before her was properly made within Rule 40(3) and she was there to consider the exercise of her discretion as to whether to make an award and, if so, in what amount.
40. She noted that the grounds would be contested. They would. This is not only a major dispute between the parties involving very serious allegations against Dr Mireskandari. It obviously relates to a large number of matters the truth of which will never be known, at least in legal proceedings, because there has been no trial. The Employment Judge cannot be said to have considered an irrelevant factor when she noted that there would be a dispute on the allegations. That is hardly surprising. She is making the comment, in my view, as relevant to the stage at which she was asked to consider the exercise of discretion, that is without a trial of the issues. As Mr Tatton-Brown concedes, at the end of such a trial, if in the face of a warning about costs, allegations were made which proved to be unfounded, a costs application would likely be made and be successful.
41. The judge then considered that these issues were not easy. She is right. A succession of judges in the EAT show that these Regulations are difficult. Indeed, one has only to look at the judgment of the Court of Appeal in Towergate v Harris [2008] IRLR 536 to see that on the Regulations interpreted in that case by me, I had, according to one Lord Justice, been plainly wrong and according to two other Lord Justices, the consequences of that Lord Justice's construction were absurd.
42. So, for the Employment Judge in this case to remark that the issues were not easy is correct. This is a reference specifically to the Regulations. I come back to the two cases (para 10 above) because these are still unreported and were obviously new to the parties at the time when the applications for strikeout and for costs were made but not, it seems, at the time of the first claim and possibly not at the time of the second, although I make no finding about that.
43. Again, a helpful concession made in argument by Mr Tatton-Brown is that if the claim were made knowing that the Tribunal had no jurisdiction, it would be unreasonable conduct. That is not the finding by the judge. Indeed, her acknowledgement that these matters are not easy indicates that she is not accepting that the Claimant forged ahead knowing that there was no jurisdiction in the Employment Tribunal to hear them by reason of the operation of the 2002 Act regime. Perhaps teasingly, but nevertheless with some force, Mr Tatton-Brown points to the fact that the Respondents instructed leading Counsel for the purpose of the two-day hearing where long arguments were raised by both sides.
44. Finally, I do not accept that the Employment Judge considered an irrelevant factor when she pointed to the victimisation claim going to a hearing. That, of course, is relevant and, again, I only have to cite Mr Allen's opening submission that he cannot criticise the Employment Judge for taking account of the context of the litigation when she says this:

"The outcome was not all claims were struck out but most of them were and there is no appeal by the Claimant against, for example, finding that there was no continuing act or that such claims should only be dealt with a la Hendricks at the conclusion of the hearing by a three-person Tribunal."

45. As to an issue which arose relating to the Claimant's ability to pay, if I were minded to decide this, I would wish to hear further argument or possibly remit it to the Employment Judge. I take it that the reference the Employment Judge makes to no comment on the amounts set out in the Respondents' schedule, relates both to the sum claimed and might be some reflection on what the judge perceived without evidence to be an ability to pay. In fairness to both sides, this issue has not been squarely put before the Employment Judge and it is not before me.
46. This appeal, therefore, is resolved by the simple application of the principle that Employment Judges are there to exercise discretions which are unfettered except for two principles: generally, that the judge must exercise the discretion with common sense judicially; and by statute she may pay attention to ability to pay. Otherwise, as was said by Bowen LJ, it is not for me to lay down the grooves along which an Employment Judge should move when Parliament has not done so.
47. I appreciate that the outcome will be unsatisfactory to Dr Mireskandari, who was affected by very serious allegations against him which have not been tested, and he has been involved in distraction from his legal practice by these proceedings. For that matter, so has the Claimant, starting off on a relatively new career for her, and it was for those reasons that I let out my cri de coeur that these people try and resolve their issues without coming before the courts. I attempted in my County Court case to avoid making findings unless they were strictly necessary. It is important to recognise that all I have done in this case is to acknowledge that the Employment Judge here applied the law and the discretion to findings of fact which were for her alone and not for me.

.

Appeal

48. An application has been made for permission to appeal to the Court of Appeal, as Mr Allen engagingly puts it, as a matter of form, but I will treat this as a matter of substance. The issue of discretion is one on which other Employment Judges and EAT judges may differ, but if I am correct in the application of the authorities, then there is no compelling reason for the Court of Appeal to consider the scope of Rule 40 (it has not been tested here), the approach of superior courts to inferior courts' exercise of discretion, or to unpick the findings of fact and the exercise of discretion by the Employment Judge. There is no real prospect of success.

Costs

49. An application has been made for costs on behalf of the Claimant. Why am I not surprised? The question is whether the Respondents, in pursuing this appeal, acted unreasonably contrary to EAT Rule 34A(1). It is, of course, possible for an appellant attending a Rule 3(10) hearing, and being blessed with a full hearing to follow, nevertheless to have acted unreasonably. In this case, I have to say that it is only because Mr Tatton-Brown has been able to present such a forceful written and oral argument that the view I have taken has been different from the one which I took when Mr Allen appeared.
50. The difficulty, of course, in any single party hearing, particularly attended by illuminati such as leading Counsel, is that one only gets, only part of the case and, for that reason, a bipartite hearing is set up. This case, as presented to me, was not unreasonable within any of the epithets of the Rule and so I allowed it to go to a full hearing and I have been much exercised by both sides' submissions in this case. The Respondents' case cannot be described as unreasonable or unreasonable conduct. All that has happened is they lost and I have agreed with HHJ Peter Clark that, ultimately, there was no point in the case but it has taken us until now to realise that. The application is dismissed. Mr Allen said he would not apply for costs on that failed costs application. I am sure that concession was not made as lightly as it sounds.