United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR EDWARD KEMP (of Counsel) Bar Pro Bono Unit
For the Respondent	MISS CHARLENE HAWKINS (of Counsel) Instructed by: DLA Piper UK LLP Victoria Square House Victoria Square Birmingham B2 4DL


 


SUMMARY

PRACTICE AND PROCEDURE

Costs

Appellate jurisdiction/reasons/Burns-Barke

Costs in the EAT were awarded as the Appellant behaved unreasonably in conducting a campaign beyond the proceedings. It is an abuse of the process of the EAT and the Appellant is vexatious. The claim and the appeal were misconceived.


 


HIS HONOUR JUDGE McMULLEN QC

1. An application has been made by Miss Hawkins for costs in this court. I refer to the judgment dismissing the appeal.
2. The application was made under EAT rule 34A(1) on the grounds that the claim was misconceived, the proceedings are vexatious and there was unreasonable conduct by the Claimant in the appeal. Miss Hawkins contends that this legally qualified Claimant should have known from the full disclosure which was made before he issued the claim that he could not succeed when he saw the calibre of the competition and that he did not meet their standard. He does not have the experience in advocacy apart from his own litigation and he does not have experience in the specialisms the Regulator required. The Claimant could not have achieved success at interview because he is not qualified to practise as a barrister in England and Wales, which is the second essential qualification. The conduct of the case and appeal has been disgraceful because of the email prior to the trial and prior to the hearing today. The Claimant has been warned about this sort of conduct, he should have realised it is wrong.
3. Mr Kemp contends that there is no schedule of costs and he is right, there should be, but that is a matter which could be left to another time. There has been no earlier indication by the Respondent that it would seek its costs. The Judge did not find that the Claimant was vexatious. She reflected on it but there is no finding as to that. Costs in the EAT jurisdiction are exceptional and the Claimant succeeded in persuading Bean J that there was merit in the points which came forward and he should not be criticised today.
4. In my judgment this is a proper case in which to exercise the exceptional jurisdiction and to make an award of costs. The conduct of the Claimant is unreasonable. It is disgraceful from whomever it comes, let alone from a barrister. I pointed out when I heard his last appeal three weeks ago, Iteshi v BT plc [2011] UKEATPA/0378/11, that it was wrong to engage in pre-trial publicity before the Employment Tribunal in that case. Disregarding that imprecation the Claimant uttered an email today, which is a letter to his MP copied to the EAT and shown to me. I paid no attention to it during the course of the hearing, having given both counsel the opportunity to make submissions upon it. But now it is relevant when responding to a submission about his conduct.
5. I bear in mind that the Claimant is highly experienced in employment tribunal proceedings albeit for the most part in his own cause. That he should make with no evidence at all allegations of fraud, conspiracy with the Government between the judges and so on, is disgraceful. The fact that he is writing to his MP is one thing, he is entitled to say what he likes to his MP, but that document was sent to the open mailbox of the EAT. It has been shown to me today, and to Lady Smith who is also cited in it and is hearing his next appeal tomorrow. It is quite wrong for this material to be adduced, no evidence is brought to support it, it is part of a campaign to expose and discredit the Employment Tribunals and the EAT. It is pre-determined in the Claimant's eyes that he will get no justice. I pointed out in the last case how wrong he is about that.
6. The proceedings with which I am concerned today include the same sort of pre-trial hostile publicity. The Employment Judge said this:

"46. Finally the respondents have referred me to a number of other claims that the claimant has brought in recent years against public authorities and Government bodies. The respondents maintain that the claimant's claims are vexatious. Rule 18(8) of the Employment Tribunal Rules provide that a claimant can only be struck out by a judge or an employment tribunal on one of the grounds set out at rule 18(7)(b) to (f). The respondent relies on upon Rule 18(7)(b) and state that the claim should be struck out because it is:

'Scandalous, or vexatious or has no reasonable prospect of success.'

For the reasons I have set out above, I consider that the claimant's claims have no reasonable prospect of success.

47. A vexatious claim is defined in the case of ET Marler Ltd v Robertson [1974] ICR 72 NICR and describes their vexatious claim or defence as being

'one that is not pursued with the expectation of success but to harass the other side or out of some improper motives.'

I have been referred to an email from the claimant to the respondent of 10 December 2009, page 56, the claimant states that he

'wants to tell 'his story' to the world and let the nation know what is happening at the heart of central Government.'

He states also

'I know that the employment tribunal system has become like a lucky dip and sometimes like a fake judicial system, but I can bet you that no honest competent lawyer would advise you that you would have a good defence for shortlisting mainly non-lawyers over a qualified barrister for a legal advisor role!'"

7. The full text of the extracted passages should be read. So should the Claimant's proposition to the PHR which is in unmeasured terms. He has no intention of engaging properly in this matter. Mr Kemp says that the Claimant did not attend at the Employment Tribunal for personal reasons but he knew what was at stake and he was not there to test the Respondent. Making such allegations without support is unreasonable conduct. The claim is promoted for an ulterior purpose which is continued on appeal. He is seeking to wage a campaign beyond the narrow remit of the claim and appeal which he made against this Respondent. It is in my judgment vexatious.
8. I also consider that the application for costs is justified in relation to the claim being misconceived. I look at this from the standpoint of the Claimant himself. He has a Masters degree in employment law. He must have known two things: he could not have overcome the strong competition which he faced and was shown before he issued his claim. Yet only at the hearing today did he accept the Employment Judge's finding on that. He could not fulfil the essential qualification of being a barrister entitled to practise in England and Wales (even if he might have hoped to have negotiated a solution to this, given the Respondent did not take the point in its response). I accept Mr Kemp's submission that the Claimant is entitled to complain about his treatment in the sift; that he may have failed at an interview to get the job would not preclude him from issuing a claim in respect of the sift procedure because all candidates whatever their qualifications are entitled to be treated without discrimination at all stages. But this claim was unreasonably conducted, it had no reasonable prospect of success and by the time the claim was issued the competition was known. It was misconceived as it was bound to fail, as he from his background should have known. So was the appeal in light of the finding.
9. The Claimant has made a very substantial number of unsuccessful appeals to the EAT. I know the Respondent did not issue a costs warning in advance of today but its skeleton argument must have shown him the way in which matters could likely proceed. I will grant the application for costs as sought.
10. I appreciate that in this case the Claimant has legal representation and I very much welcome the points which have been made. The fact that we are at a full hearing does not mean that it escapes the attention of rule 34A: JO Sims Ltd v McKie UKEAT/0518/05. Indeed, that would mean that no applications could be made because there is no opportunity at a rule 3 and little input at a preliminary hearing. Proper consideration can be given only at a full hearing.
11. Miss Hawkins submitted that this is a case where the Claimant could not have expected to have got the job or to succeed on appeal and she relies by analogy on the age discrimination case where the claimant sought simply to expose those employers who place advertisements which contain some reference to age or youth. I do believe that the Claimant would have very much like to have been employed by Ofwat. His dispiriting recent career shows that he needs a job but in my judgment, there was no possibility of his being appointed to this position at least from the time when he was shown the competition. This appeal falls within rule 34A as being unreasonably conducted, vexatious and misconceived. The repeated pre-hearing emails are an abuse of the process of the EAT. After inviting submissions on the Claimant's ability to pay under rule 34B(2), I award the Respondent a contribution of £750 to its costs with time to pay.