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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Coles v National Trust [1999] UKEAT 1458_98_0110 (1 October 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/1458_98_0110.html Cite as: [1999] UKEAT 1458_98_0110, [1999] UKEAT 1458_98_110

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APPEARANCES

 

For the Appellant	Mr N Booth (Of Counsel - ELAAS)


 


JUDGE PETER CLARK:

1. We begin with the history of this matter. By an originating application presented to the Exeter Employment Tribunal on 9 May 1997, the Appellant, Mr Coles made a complaint of disability discrimination against the Respondent, The National Trust. The claim was resisted and first came on for hearing before an Employment Tribunal chaired by Mr A D Puttick on the 17 and 28 July 1997.
2. By a decision promulgated with extended reasons on 12 August 1997 that Tribunal dismissed the complaint. They found that the Appellant was disabled but that the Respondent was unaware of his disability when failing to short list him for a vacancy in the Trust's shop at Heddon Valley and Watersweet House. They found the claim to be completely without merit. We shall refer to that as the liability decision.
3. Thereafter the Respondent made an application for costs. That application was considered by the same Employment Tribunal at a hearing held on the 8 September 1997. The Appellant attended that hearing in person, the Respondent submitted written representations.
4. In a very brief decision with extended reasons dated 8 September 1997 the Employment Tribunal held that the Appellant had acted vexatiously in pursuing his case. By a majority they awarded the maximum £500 assessed costs permitted under rule 12(3)(a) of the Employment Tribunal Rules of Procedure, (the first costs order). The Chairman, in the minority, would have awarded £250 costs against the Appellant.
5. Against the first costs order the Appellant appealed (EAT/27/98). That matter came before a division presided over by Mr Justice Kirkwood and by an order dated 28 July 1998 this appeal tribunal allowed the appeal and remitted the issue of costs only to the same Employment Tribunal for reconsideration. The basis of that order, we see from the judgement delivered by Mr Justice Kirkwood, was that the Employment Tribunal had given insufficient reasons for the first costs order. The remitted hearing took place before the same Tribunal on the 11 September 1998. By a decision with extended reasons promulgated on the 5 October 1998, (the second costs order) the Employment Tribunal reached precisely the same conclusion as it did on the first occasion.
6. Against the second costs order the Appellant brought this Appeal (EAT1458/98). The appeal was first listed for preliminary hearing before a division presided over by Mr Justice Lindsay on 30 April 1999. The appeal was then adjourned for production of the chairman's notes of the hearing which took place on the 11 September 1998. One page of notes has since been produced. The appeal is now before us on the restored preliminary hearing.
7. On the last occasion a draft amended Notice of Appeal was prepared by Counsel, Ms Robertson then representing the Appellant under the ELAAS pro bono scheme. Today the Appellant is represented by Mr Booth of Counsel, again under the ELAAS pro bono scheme, and he has advanced the 3 points which were taken in the amended Notice of Appeal. First he challenges the Employment Tribunal finding in the second costs decision that the Appellant had acted vexatiously in bringing and pursuing his claim against the respondent. We see from the judgement of Mr Justice Kirkwood that in allowing the first appeal this Employment Tribunal drew attention to the words of Sir Hugh Griffiths in E.T. Marler Ltd v Robertson [1974] ICR 72, where he dealt with the meaning of the word "vexatiously". His Lordship said this:

"If the employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive, he acts vexatiously and likewise abuses the procedure. In such cases the Tribunal may and doubtless usually will award costs against the employee".

8. The Tribunal said this at Paragraph 15 of the liability decision reasons.

There are no grounds whatsoever for the proposition that the respondent has "blacklisted" the appellant either on the grounds of bias, or because of the appellant's complaint in 1993.

9. In the second costs order reasons the Tribunal return to that theme at Paragraph 4 and say this..

"Having carefully listened to the appellant at length we have no doubt that he was primarily motivated to pursue his claim through Spite because he perceived that he had been unjustly blacklisted and because he believed that the respondent had deliberately flaunted the provisions of the 1944 Act".

10. Mr Booth submits that to conclude that the appellant had acted vexatiously for those two reasons was a perverse finding. He submits that the Tribunal did not consider whether those two grounds upon which the applicant based his original complaint were genuinely held and properly advanced in support of his claim of disability discrimination. It seems to us that the Tribunal considered that possibility but came to the conclusion, permissibly, that particularly in pursuing his contention without foundation that he had been blacklisted by the Trust his object in bringing the claim was mischievous rather than a genuine complaint. In these circumstances we can see no grounds for interfering with the second costs order on this basis.
11. Secondly Mr Booth challenges the quantum of the costs order, the maximum £500 assessed costs. We think there are two difficulties with that submission. The first is that in evidence on the last occasion before the Employment Tribunal the appellant is recorded as having said:

"I'm not arguing the amount (of costs)".

12. We put that, as Mr Booth asked us to, in the context of his earlier remark that he could have paid the money for costs when the order for costs were made as he could have sold his car. Mr Booth submits, attractively, that it is a harsh decision to require a disabled person who lives in the countryside to have to sell his car to pay costs. However it seems to us that the Tribunal fully took into account his means. The fact that an appellant is impecunious is not of itself a ground for not making an order for costs. They plainly took the view that the Respondent Trust, a charity, had been put to considerable and wholly unnecessary expense and weighing up the interests of both parties reached a conclusion which it seems to us they were entitled to reach exercising their discretion. As to the amount of the costs, we see that there was disagreement between the members of the Employment Tribunal. The lay members in the majority assessed the order for costs at £500; the Chairman would have ordered £250. We think that that shows the range of opinions which are open to an Employment Tribunal and again on the actual amount we can see no grounds for interfering.
13. The final point relates to the question of interest. With the second costs order the Employment Tribunal office sent out a standard form notice which so far as is material is in these terms. Notice the Employment Tribunal's Interest Order 1990, gives the name of the case and continues in this standard form.

"Except in cases under the Sex Discrimination Legislation the Employment Tribunal Interest Order 1990 provides interalia that sums of money payable as a result of a decision of the Employment Tribunal shall carry interest"

14. The notice then deals with the way in which the interest is calculated. Mr Booth submits, quite correctly in our judgement, that looking at the interpretation provisions in art 2 of the Employment Tribunal's interest order 1990, "relevant decision" for the purpose of making an award of interest is defined as follows.

"Relevant decision in relation to a Tribunal means any award or other determination of the Tribunal by virtue of which one party to proceedings before the Tribunal is required to pay a sum of money excluding the sum representing costs or expenses to another party to those proceedings".

It follows that the Employment Tribunal had no power under the 1990 order to award interest on the costs award made in favour of the Respondent in this case. We have the following observations on that submission; first it is plainly right that no interest is payable on this costs order. Second, the Tribunal's decision and reasons make no reference to interest; it therefore seems to us that no award of interest has been made on the costs order in this case. Thirdly, we think that what probably happened is that a member of the administrative staff at the Exeter Employment Tribunal sent out the standard form interest notice without appreciating that interest is not recoverable on an order for costs. We think that that error is understandable looking at the wording of the standard form notice. We strongly recommend that the wording of that notice is amended to add the words taken from Article 2 of the 1990 Order "Excluding a sum representing cost or expenses" after the words, "as a result of a decision of an Employment Tribunal". In that way we hope that such an error will not be repeated.

15. So far as this appeal is concerned, we proceed on the basis that no order for interest was made. Had such an order been made then it would have been appealable. In all the circumstances having considered the submissions made by Mr Booth were unable to find any grounds for interfering with this Tribunal order and accordingly this appeal must be dismissed.