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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Gee v Shell UK Ltd. [2002] EWCA Civ 1479 (24 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1479.html Cite as: [2003] IRLR 82, [2005] ICR 1117, [2002] EWCA Civ 1479

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th October 2002

Lord Justice Scott Baker:

1. This is an appeal by Shell UK Ltd (“Shell”) with the permission of this Court from a decision of the Employment Appeal Tribunal presided over by Maurice Kay J. Mrs Gee had succeeded in her appeal to the Employment Appeal Tribunal on 16 January 2002. The Employment Appeal Tribunal sent her case back to be reheard by a differently constituted Employment Tribunal, initially for directions. The basis for this was that the original Tribunal had placed unfair pressure on Mrs Gee that had caused her to withdraw her claim.
2. The circumstances are somewhat unusual and in outline as follows. Mrs Gee operated a service station for Shell under what Shell contends was a franchise agreement. As with many other operators, Shell terminated its agreement with her with effect from 31 March 1999. This was, apparently, in advance of a number of statutory changes that were due to come in effect in the following months and might be beneficial to people in the shoes of Mrs Gee. These changes included:

• A maximum working week for workers;

• A minimum hourly wage for workers;

• A reduction in the qualifying period for unfair dismissal from two years to one;

• Increase in the maximum compensation for unfair dismissal from £12,000 to £50,000.

3. In 1993 Mrs Gee and her husband entered into an agreement with Shell to operate one of their service stations. There were six further agreements in relation to the same service station. For reasons that are not clear, between 1995 and 1997 the agreements named only her husband. But the final agreement dated 1 August 1998 was between Mrs Gee and Shell. It was terminated, as I have said, on 31 March 1999.
4. On 19 April 1999 Mrs Gee filed an application claiming unfair dismissal on the basis that she had been employed as a manageress of the service station since 1993. This gave rise to two preliminary issues:

i) Whether the relationship she had with Shell was one of employer/employee;

ii) If so, whether she had sufficient service to qualify for protection from unfair dismissal and thus bring her within the Employment Tribunal’s jurisdiction.

5. The law went through a period of uncertainty as to the qualifying period. This was resolved by the decision of the House of Lords in R v Secretary of State for Employment ex parte Seymour Smith [2000] 1WLR 435 on 17 February 2000 that confirmed the two year qualification period specified by the statute.
6. On 8 March 2000 the parties attended the Employment Tribunal in Birmingham for a three day hearing. In the middle of the afternoon of the first day the Employment Tribunal dismissed the application of Mrs Gee on its withdrawal by her. Mrs Gee represented herself and three other service station operators, Mr Beck, Mr Boak and Mr Parekh. Shell was represented throughout by Mr Andrew Hochhauser Q.C. The case of Seymour Smith had been decided by the House of Lords three weeks before, but Mrs Gee was not aware of the implications of the decision before the hearing on 8 March 2000.
7. It was clear that she had to establish not only that her relationship with Shell was that of employer/employee but also that she had been employed continuously for two years. On the other issue, Mrs Gee faced a quite different hurdle. Another Shell service station operator, Miss Griffiths, had lost her unfair dismissal claim in Liverpool before an Employment Tribunal in July 1999. She had worked under a similar agreement to that of Mrs Gee. Miss Griffiths had also, in December 1999, failed to establish that she was a worker in relation to a claim for unauthorised deduction from wages.
8. Mrs Gee knew about Miss Griffiths case, indeed she had been at the hearing. Also, on 17 January 2000 Shell’s Solicitors had written to Mrs Gee saying that in the light of Miss Griffiths’s case she would be acting unreasonably if she did not withdraw her claim and advising her to take legal advice. Apparently she did indeed take legal advice but she continued with her claim.
9. When the parties arrived for the hearing Mr Hochhauser produced a skeleton argument. His case was that between 1995 and 1998 the contracts were between Mr Gee and Shell and not Mrs Gee and Shell. Therefore she could not establish two years continuous service. Secondly, the employment issue had been decided by the Griffiths decision, which involved a virtually identical contract. Although the Tribunal was not formally bound by the Griffiths decision it was an abuse of process for Mrs Gee to pursue the point.
10. What happened at the hearing can be gleaned in part from a letter from the Tribunal dated 25 May 2000 and in part from a note made by Shell’s solicitor. Over a period of some two hours between 10.45 and 12.45 there was argument and discussion before the Tribunal. At 12.45 the Tribunal adjourned for 25 minutes. On reassembling the chairman rejected the abuse of process argument. He said this. I quote from the note:

“…the tribunal had considered carefully the submissions made. There were a number of issues, some of which had clearly been litigated before. Some, according to the applicants, either had not been litigated before or had not clearly been litigated.

With regard to three applicants, there was an issue about whether they had two years continuous employment. [I interpolate that the only issue in the Parekh case was whether he was an employee].

The Chairman said that many applicants with one year’s service had had their claims stayed pending the decision on Seymour Smith. The outcome of that case was that the two year qualifying period was not discriminatory. Therefore, so far as these applicants were concerned, there was a two year qualifying period.

The tribunal considered that, in relation to Mrs Gee, Mr Beck and Mr Boak, there was considerable doubt as to whether they satisfied the two year requirement. Even on the best analysis of the position, there was considerable doubt.

This was without prejudice to the employment issue.

Even if the applicants were employees there was a considerable hurdle with regard to whether they had two years’ service. The tribunal would not wish to deprive a party of the right to call evidence.

However, the applicants are at risk of a costs award if they persisted and the tribunal found they lacked two years’ service.”

11. The Chairman then suggested the three applicants should consider whether they wanted to continue in the light of Seymour Smith and the lack of clear evidence supporting their claim. If they went on they faced the risk of costs. If they could get Shell to agree no costs if they withdrew so be it. The Chairman said if the applicants wished to pursue their claims the Tribunal would consider the two years’ service issue. If they could not satisfy the Tribunal they were at risk of costs.
12. The Chairman went on to say that there were two types of costs order – a summary order up to £500 and a taxed costs order. He gave a strong steer that the applicants were at real risk of a substantial costs order if they went on with the two year service point and failed. He then said that Mr Parekh did not face the same hurdle and in his case the issue was whether he was an employee. He added:

“However, the tribunal was making the same costs warning in the respect of Mr Parekh. If the tribunal found his application was continued frivolously, vexatiously or otherwise unreasonably, he would face the risk of an order for costs. ”

The Court then adjourned until 2.30pm.

13. On return, Mrs Gee referred to a conversation she had had over the adjournment with Mr Hochhauser. She asked “whether a costs order would be based on the length of the service hearing”. She felt she had a good case on this. The Chairman said that whatever costs Shell incurred would undoubtedly include the costs of that day and the Court would have to consider (1) whether a costs order should be made and (2) if so, on what basis. She faced the risk of a costs order not limited to £500. Mr Hochhauser made it clear that if the case went on and he succeeded he would be looking for Shell’s costs to be taxed by the County Court. Mrs Gee was concerned that her house was at risk.
14. The other three applicants all withdrew their claims and there was a further adjournment before Mrs Gee likewise withdrew her claim, expressing bitterness that she was not able to put her case to the Tribunal.
15. It appears from the Chairman’s letter that the Tribunal regarded the period of employment issue as an insurmountable problem on the facts regardless of any entitlement to try and persuade them that she was an employee. He said, and this is the one paragraph in his letter of 25 May 2000 that is highlighted in bold type:

“More importantly perhaps, it was clear that Mrs Gee’s period of employment (if any) could only commence from 1 August 1998 when she signed an agreement with Shell. All previous agreements were between her husband and Shell. Her employment could not therefore have commenced until the 1 August 1998 at the earliest, if it did at all. It is agreed that it was terminated on 31 March 1999. The applicant was therefore in severe difficulties with regard to the qualifying period of service.”

16. He went on in the letter to say that the Tribunal explained to Mrs Gee that until the decision in Seymour Smith there was room for doubt about the qualifying period of service and therefore it was perfectly reasonable for her to continue, but now that the two year period had been settled and it was difficult for her to establish it the question of a costs order arose.
17. There are two points to be made. The first is that the Chairman was in error in saying that all previous agreements had been between Mrs Gee’s husband and Shell. The first two agreements had been with Mr and Mrs Gee, the next four with Mr Gee alone and the last one with Mrs Gee alone. The second is that on the basis of Mrs Gee’s agreement on 1 August 1998 alone her qualifying period was only eight months. Thus if that agreement alone determined her qualifying period she was unable to establish one year let alone two and it is difficult to see the relevance of the Seymour Smith decision to her case.
18. This appeal raises the question of whether, and if so in what circumstances, it is appropriate for an Employment Tribunal to point out to a Claimant that failure of the claim may lead to an adverse costs order. Maurice Kay J. put it this way:

“It is common ground that, within the present context of civil litigation, in the Employment Tribunals just as in the courts, it is incumbent upon a tribunal or court to be proactive in the management of cases with regard to overriding objectives as set out in the Civil Procedural Rules but that there is a line to be drawn. On one side of that line lies robust, effective and fair case management. On the other side lies inappropriate pressure and unfairness. This appeal is ultimately about upon which side of the line the proceedings in the Employment Tribunal fell. In answering that question we remind ourselves that we should hesitate to interfere with the managerial and procedural judgment of an experienced and specialist Employment Tribunal. (see X v Z Ltd [1998] ICR 43, 54, per Waite L.J). It is only if what transpired was outside the range of approaches available to a reasonable tribunal that the appeal would succeed.”

19. Mr Hochhauser’s submission is that Mrs Gee had a fair hearing; there was no breach of natural justice; the Tribunal did not err in law. It was perfectly entitled to issue a ‘costs warning’ and draw attention to weaknesses in Mrs Gee’s case, provided it did so in good faith (and no one suggests otherwise) and had not closed its mind to any ultimate argument about costs should the case proceed. Put shortly, what happened was no more than robust effective case management. Mr Hochhauser added that it did not make a scrap of difference whether Mrs Gee was acting in person or was legally represented. (See Divine-Borty v Brent London Borough Council [1998] ICR 886). Indeed he said a Tribunal could be criticised for not giving a warning had the case proceeded and a costs order been made against Mrs Gee.
20. Maurice Kay J. said that the case was one in which the entirely proper behaviour of Shell and its representatives had to be placed in the context of the approach of the Employment Tribunal. What had to be considered was whether the Tribunal’s approach, viewed objectively, was in fact unfair and oppressive falling on the wrong side of the line to which he had referred. He went on:

“Even though [Shell] and its representatives behaved with propriety and did not coerce [Mrs Gee], if the reality is that her withdrawal was caused and, conditioned by an unfair and oppressive approach by the Tribunal, the Employment Appeal Tribunal is entitled to relieve her from the consequences of that unfairness and oppression. There is no other way of ensuring that such things do not have unjust results.”

He went on:

“In our judgment, the Employment Tribunal in this case was wrong to issue the ‘costs warning’ in the forms in which it did, in circumstances in which it had decided not to accede to (Shell’s) application for summary disposal. In effect, (Mrs Gee) was being told that, whilst her case was not abusive and, at one point, that she “might succeed”, the price of eventual failure might be a costs order which could be very substantial indeed. Moreover, all this occurred in a jurisdiction in which unsuccessful litigants are only exceptionally subjected to costs orders and in which the statutory mechanism for discouraging applicants who have a case which is considered at an early stage to have no reasonable prospect of success is the requirement of a modest deposit under rule 7. Regrettably, we have come to the conclusion that the approach of the Tribunal in this case was unfair and oppressive and left (Mrs Gee) with no alternative but to withdraw.”

21. In my judgment a Tribunal must be particularly careful not to place unfair pressure on a litigant in person. A party who is legally represented has the opportunity for his representative to put any remarks by the Tribunal in context. For example the legal representative can explain the circumstances in which a Tribunal is entitled to and may make a costs order. A Tribunal should only make costs warnings such as were made in the present case where there is a real risk that an order for costs will be made against an unsuccessful claimant at the end of the hearing. What was the risk in the present case? The relevant regulation at the time was Regulation 12(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993. So far as material, it provides:

“Where, in the opinion of the tribunal, a party has in bringing or conducting the proceedings acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably, the tribunal may make –

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

Regulation 12(3) provides:

“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 £500;

(b) where those parties agree…...the sum so agreed; or

(c) in any other case, an order that the first party pay to the second party the whole or a specified part of the costs incurred by the second party as taxed (if not otherwise agreed). ”

Regulation 12(6) provides that any costs to be taxed are to be taxed on whatever county courts scale is prescribed by the order.

22. As Maurice Kay J. pointed out, this is a jurisdiction where an order for costs is very much the exception rather than the rule. Parliament had set a high threshold for a costs order to be made, as the wording of Regulation 12(1) illustrates. It is true that in 2001 amended regulations were introduced that reformulated the costs rule as follows:

“Where, in the opinion of the tribunal a party has in bringing the proceedings, or a party or 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 [an order for costs].”

Also the maximum figure for summary costs was increased from £500 pounds to £10,000.

23. This regulation therefore lowered the threshold by the addition of the criterion of the misconceived bringing or conducting of proceedings. This emphasises, in my judgment, the extreme unlikelihood of the tribunal making a costs order against Mrs Gee if she had proceeded with her claim and failed. We have of course to proceed on the basis of the regulation that was in force at the time.
24. In my view, the critical question is whether the risk of a costs order being made against Mrs Gee was sufficiently high to justify the pressure that was placed upon her. I have come to the conclusion that the pressure was disproportionate.
25. It is difficult to see how Mrs Gee could be said to have acted ‘otherwise unreasonably’ in the sense envisaged by the regulation, which Simon Brown L.J. in Kovacs v Queen Mary and Westfield College and Another [2002] EWCA Civ 352 characterised as ‘misconduct’. The Tribunal had ruled in the present case that it was not an abuse of process to proceed with the employment point and it was not as a matter of law bound by the decision of the Liverpool Tribunal in Griffiths. Mrs Gee was entitled to argue that it was wrong. On the continuity point she had a respectable argument that although some of the agreements had been in her husband’s name alone she too was a contracting party and that therefore there was continuous employment for the required two year period.
26. Against this background the ‘costs warnings’ was unfair. It left Mrs Gee in no doubt (and in my judgment would have left any reasonable litigant in person standing in her shoes in no doubt) that if she continued and lost she was at a real risk of a substantial order for costs being made against her and that it might well be enforced against her house. Both she and her husband were unemployed. She simply could not afford to take the risk. There is no doubt that it was this that caused her to withdraw her claim and in my judgment the Employment Appeal Tribunal was correct in concluding that the pressure was unfair and accordingly that the Employment Tribunal acted unlawfully.
27. In Kovacs the issue was whether or not ability to pay was a factor that the Tribunal was entitled to take into account in considering making a costs order under Rule 12. This court decided that it was not. Chadwick L.J. referred at paragraph 30 to the need to ensure that (i) an employee could have recourse to a Tribunal without being deterred by the potential liability for the other party’s costs which is a feature of litigation in the courts and (ii) that that immunity was not abused.
28. The one case to which we have been referred in which a similar situation arose is the Royal Borough of Kingston v Lewis (unreported) 13 July 2001 which was a decision of the Employment Appeal Tribunal presided over by Her Honour Judge Wakefield. In that case the applicant was told, through his representative from the Citizens Advice Bureau, that the Tribunal was of the opinion that his complaint did not have any reasonable prospect of success and that if, at the conclusion of the case, the Tribunal considered that in bringing the proceedings he had acted frivolously or unreasonably it would consider making an award of costs. He therefore withdrew his complaint. It was also said that the chairman had warned the representative from the Citizens Advice Bureau that he could be personally liable if the matter went ahead and the applicant lost. Judge Wakefield said:

“In our view, the way in which the Employment Tribunal conducted itself on this occasion resulted in a denial of a fair hearing of this originating application. While we accept that a Tribunal may, and often should, explore with the parties any perceived weaknesses of the case, either at the outset or during the hearing, and may properly alert a party who might otherwise might not know as to its powers regarding costs, what occurred in this case went far beyond the sort of useful impartial dialogue which can frequently assist in resolving or limiting the matters in dispute.

The Tribunal in the language which it used, even if it was not in fact the case, demonstrated a concluded view hostile to the Appellant. This caused the Appellant to abandon his claim. We are satisfied that he did that by reason of the pressures he felt to have been exerted by the Tribunal through their expressed view as to the merits of his case and the possible consequences to him in costs. He has been denied a fair hearing. This appeal therefore succeeds and the case must be reheard before a fresh Tribunal.”

29. I agree with Judge Wakefield’s analysis. The ultimate question is whether an applicant has been denied a fair hearing. The danger is that where a Tribunal makes or presses a costs warning that is not justified or in a manner that is not justified an applicant will be deprived of a hearing at all.
30. My conclusion is that the Tribunal exerted unfair pressure on Mrs Gee and that this caused her to withdraw her claim. She had an arguable case on the continuity point and on the employment issue the tribunal had ruled that it was not an abuse of process for her to continue with her case. In the light of the high threshold that prevailed at the time under Regulation 12(1) the prospect of any application for costs against her, let alone one that placed her house at risk, being successful seems to me remote. The Employment Appeal Tribunal was correct to remit the case for rehearing before a differently constituted tribunal. I would therefore dismiss the appeal.

Lord Justice Sedley

31. I agree that this appeal should be dismissed. The observations which follow are by way of addition to, not qualification of, the judgment of Scott Baker LJ.
32. While it is true that in general employment appeals to this court are in substance appeals against the decision of an employment tribunal rather than of the Employment Appeal Tribunal, in cases which concern good practice at first instance the EAT has a fund of experience which this court lacks. In such cases it is worth bearing in mind exactly what it was that Sir John Donaldson MR said in Hennessy v Craigmyle Ltd [1986] ICR 461, 470:

“It is too often forgotten that, in the context of appeals from the Employment Appeal Tribunal, this court is a second-tier appellate court. It may, and usually does, obtain considerable assistance from the judgment of the Employment Appeal Tribunal, but its concern is with whether the decision of the industrial tribunal was right, not with whether the Employment Appeal Tribunal was right.”

33. For the reason I have given, the passage which I have italicised has particular relevance in a case like the present. It matters that this court’s sense that an injustice was done to Mrs Gee was shared by the EAT.
34. While plainly there cannot be one rule or legal principle for litigants in person and another for those who are represented (see Divine-Borty v London Borough of Brent [1998] ICR 886, 895 per Simon Brown LJ), it does not follow that an employment tribunal is entitled to treat every party as if it had the strength of advice and representation which, for example, Shell (UK) Ltd enjoyed in this case. Inexperienced lawyers may not be a match for experienced ones; lay representatives may not be a match for lawyers; some lawyers may not be a match for a clever litigant in person or an experienced lay representative. The tribunal’s job, precisely because it cannot guarantee equality of arms, is to ensure equality of access to its processes for sometimes disparately powerful parties. This involves making a careful appraisal, case by case, of the parties and their respective capabilities. It must also, however, involve ultimate equality of treatment, so that whoever presses on with a doomed case after due warning faces the same risk on costs.
35. It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to people without the need of lawyers, and that - in sharp distinction from ordinary litigation in the United Kingdom – losing does not ordinarily mean paying the other side’s costs. This case concerns the original costs threshold, adopted from the High Court’s longstanding practice, of frivolous, vexatious or abusive initiation or conduct of proceedings, to which the 1993 Regulations added disruptive or otherwise unreasonable action. In Bennett v London Borough of Southwark [2002]….EWCACiv …. , paras. 24-27 and 50-55, this court gave some guidance on the meaning of the word ‘scandalous’ in this context, echoing the remarks of Lord Bingham CJ in R v Mildenhall Magistrates Court, ex parte Forest Heath DC (The Times, 16 May 1997) on the unhelpfulness of the epithets used in the rules. This case does not concern the ambit of the recent amendment to include ‘misconceived’ proceedings – again, not an easy concept even for lawyers. But the governing structure remains that of a cost-free user-friendly jurisdiction in which the power to award costs is not so much an exception to as a means of protecting its essential character.
36. It follows that lawyers, none more so than Queen’s Counsel who rightly command great respect, have an obligation not to let their weight become overbearing, whether on the tribunal or on the opposing party. It can happen unwittingly – for example, as seems to have happened here, when the decision of another tribunal of co-ordinate jurisdiction is put forward by leading counsel as incontrovertibly right. One has only to read the careful decision of the Liverpool employment tribunal in the Griffiths case to see that, particularly on the facts before the Birmingham tribunal, a different outcome was perfectly possible. An advocate is fully entitled to contend that it is not so; but the tribunal must not let his assertion acquire the force of law or act on it unless they are satisfied, following argument, that he is right. As Scott Baker LJ has stressed, there is no criticism to be made of Mr Hochhauser’s conduct of the present case; but the too-ready acceptance by the tribunal of his arguments does illustrate dangers of injustice which it is the tribunal’s task to guard against. There is force in the written submission of Mrs Gee’s solicitor advocate (we did not find it necessary to call on him in open court) that in his endeavour to help the tribunal Mr Hochhauser was allowed in effect to open the case and to set the agenda.
37. Beyond this, however, I agree that the foundation for a costs warning was simply not there. It was arguable that this was an employment relationship, notwithstanding the Liverpool tribunal’s decision, to which Mrs Gee had in law been a party for more than two years ending with its termination. In this situation the tribunal should not have let itself be persuaded to issue a warning which has both the purpose and, usually, the effect of deterring a party from continuing. The time for such a warning is when it has become clear to the tribunal and has been explained to the party that his or her case is going nowhere.

Lord Justice Simon Brown:

38. I too would dismiss this appeal for the reasons given by Scott Baker LJ, and add a short judgment of my own only because of the obvious importance of the point at issue. I gratefully take the facts from my Lord’s judgment.
39. The critical question arising on the appeal is whether on 8 March 2000 the respondent was denied a fair hearing. That in turn depends on whether the warnings she received from the Tribunal Chairman as to her prospective liability for costs if she continued (warnings which undoubtedly caused her to withdraw her claim) constituted improper pressure upon her. That in turn to my mind depends upon whether the risk of an adverse costs order being made against her, and in particular an order not limited to £500, could reasonably have been thought to justify warning given in the terms these were given.
40. The all-important dividing line identified by Maurice Kay J in the EAT below was between on the one hand “robust, effective and fair case management” and on the other “inappropriate pressure and unfairness”. As, however, the judge recognised, that line cannot be a sharp one: costs warnings cannot properly be characterised as having applied “inappropriate pressure” or as being “unfair” unless no reasonable tribunal would have given them. Given the obvious need for “robust and effective case management” which might sometimes positively require a costs warning, there must be a wide margin of appreciation (a substantial area of discretionary judgment) open to the tribunal as to when and in what terms the warning should be given. It seems to me that only if it is perfectly plain to the reviewing court (be it the EAT or the Court of Appeal) that the tribunal has overstepped the bounds of propriety will an appeal on this basis succeed. And similarly it seems to me that that hurdle will not be cleared unless the reviewing court is satisfied that the warning was given in circumstances in which there was in reality no possibility of any costs order being made, or at any rate no possibility sufficient to justify the actual warnings given. One cannot, of course, consider only the question whether any costs order might possibly be made. It is necessary also to consider the possible extent of any such order and the terms in which the warning is given. It would be no less wrong to warn a litigant of the risk of a whole costs order being made when in reality only a limited or specified order could possibly become justified. Equally, it would be wrong to give the impression that a costs order was probable if in reality it was at most conceivable.
41. For my part I accept that the claimant in the Royal Borough of Kingston case (see paragraph 28 of my Lord’s judgment) had a stronger case for setting aside the dismissal (by withdrawal) of his complaint than the respondent here: the costs warnings were given in even more extreme terms (albeit perhaps in curcimstances which might more readily have come to justify an adverse costs order). On the other hand I share Scott Baker LJ’s view that the respondent here had a clearly arguable case on the continuity point and that no-one could sensibly have regarded the continuation of her case on the employment issue (the Griffiths’ point) as vexatious, abusive or otherwise unreasonable, not least given the rejection of the appellants’ abuse of process application, so that no costs order, still less an unlimited one, was realistically in prospect against her. In these circumstances it was quite simply unfair to discourage her from pursing her claim by the warnings in fact given.
42. I add only this. Given that the respondent’s claim now falls to be relisted before a differently constituted tribunal there seems to me a fresh opportunity now to consider the possibility of deciding the two central questions by reference only to the documents and the most directly relevant oral evidence rather than encumber the case with unnecessary detail. Thus could an estimated three-day hearing probably be reduced to but a single day.