Appeal No. EAT/0334/03/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 June 2003

Before
HIS HONOUR JUDGE J R REID QC
MR C EDWARDS
MRS J M MATTHIAS

1) MR H M PEREIRA 2) MR H J PEREIRA 	APPELLANTS

RECRUIT PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR A ELESINNLA
(Of Counsel)
Instructed by:
Messrs J R Jones
Solicitors
56A The Mall
Ealing
London
W5 3TA	

JUDGE REID QC

1.	This is the Preliminary Hearing of an appeal by Harold and Hubert Pereira who were the Applicants below against an award of costs made against them by an Employment Tribunal held at Watford.  The decision made on 22 January 2003 was sent to the parties on 3 March 2003.  The Chairman was Mr Adamson.  The Tribunal dismissed or struck out all of the Applicants’ claims which were various in number and concluded:

“9.	The Applicants are ordered to pay the Respondent’s costs in these proceedings, as assessed by way of detailed assessment in the County Court.”

2.	The appeal has been presented to us by Mr Elesinnla as Counsel on behalf of the Pereiras and I would like to pay tribute to the skilful way in which he has succinctly said everything that could be possibly on behalf of his clients with, if I may so, great charm.  The points that he takes are these, first, that the Tribunal’s decision was defective because it was in one respect insufficiently particular and therefore did not enable the Pereiras to see why the order had been made against them.  That respect is because in paragraph 59 of the decision, (it being in paragraphs 57 - 63 that the Tribunal dealt with their reasons as to costs)  the Tribunal said this:

“Despite denials to the contrary we find that the conduct of Mr Harold Pereira on occasion was intimidatory towards the Respondent.”

It is said that that was something which was inadequately explained.  In our judgment, that by itself, is not a sufficient ground to assert that the decision does not give reasons from which the Appellant can see why they had lost.  The sentence has to be taken in the context of the whole of the decision.  This is a reference to something taking place in the face of the Tribunal and it has also to be taken into account that paragraph 56 in the course of his submissions to the Tribunal on cost Mr Harold Pereira is noted as submitting that:

“his behaviour during the hearing was exceptional, it was not his normal behaviour, and it was only caused by the Respondent’s actions.”
 
In our judgment there is nothing in that particular point:  

3.	The second complaint is that the Employment Tribunal failed to specify how and to what extent the Applicants, the Pereiras, had difficulty controlling their behaviour throughout the hearing subjecting the Employment Tribunal and the Respondent to outbursts and interruptions.  So far as that is concerned the Tribunal said at paragraph 59:

“Further during the course of the hearing the Applicants frequently refused to accept direction from the Tribunal and despite statements to the contrary, sought to question decisions after they had been announced.”

They then go on to passages I have already referred to relating to intimidatory behaviour and the paragraph concludes:

“Both Applicants had difficulty in controlling their behaviour throughout the hearing subjecting the Tribunal and the Respondent to outbursts and interruptions.”

In our judgment that is perfectly adequate in explaining that particular facet of the Tribunal’s decision.

4.	Thirdly, it is said that the Tribunal erred in law or was perverse because the Appellants, the Pereiras, were never warned about their behaviour or given an opportunity to apologise and reference is made to the very well-known dictum of Browne-Wilkinson J as he then was in Wrenhurst v Catholic Herald Ltd where he said:

“‘We would also say that we think it regrettable, though in no sense legally fatal, that if the tribunal was taking the view that much time was being taken up with irrelevancies, the tribunal did not give a formal warning to Wrenhurst that if he continued to introduce irrelevant matters, the consequence could be that an order for costs would be made against him.  We think it desirable that before orders for costs are to be made on the grounds of the way in which proceedings are being conducted, a litigant (especially a litigant in person) should be warned for continuation of his conduct may give rise to an order for cost contrary to the ordinary rule’”

5.	The difficulty that Counsel readily accepted he had in asking us to permit this appeal to go to a full hearing on the basis of that dictum is the phrase “though in no sense legally fatal”.  It is always difficult for a Tribunal to know quite how far it should go in warning off an Applicant or Respondent who is conducting proceedings in an unreasonable manner and telling them of the possible liability for costs.  

6.	On the one hand if no specific warning is given, an appeal will be launched saying that the Tribunal ought not to have made an order for costs without first having given the warning.  On the other hand if a warning is given, the appeal is then launched suggesting that the Tribunal was bias against the Appellant and had prejudged the issue.  Whilst it may be that another Tribunal would have been more explicit in condemning the behaviour of the Pereiras during the course of the hearing it does not seem to us that it can properly be said that the failure to warn them in the course of the hearing, as to the possibility they would be liable in costs makes this decision one which is either perverse or subject to an error of law.

7.	Mr Elesinnla continued by suggesting that the Employment Tribunal had erred in law because it failed to have regard to 3 specific matters.  Firstly, that there had been no preliminary hearing or pre-hearing review in respect of the Appellants’ cases.  Second, that in order to reach its conclusion the Employment Tribunal has heard evidence from both Appellants and Respondents and had not thought fit to stop the case at half time, so to speak, and thirdly, that no costs warnings were given during the course of the hearing.

8.	That last matter I have already dealt with.  So far as the lack of a preliminary hearing or pre-hearing review was concerned, there was a hearing on 11 October 2002 and at the commencement of the Extended Reasons given by the Chairman on that occasion, Mr Kay QC, this was what was said:

“1.	The preliminary hearing and pre-hearing reviews were called on at 2.30 pm.  Having regard to the number of documents, number of witnesses and the issues that arise, it is plain that the Tribunal does not have sufficient time to hear the preliminary hearing or the pre-hearing reviews.
2.	Having regard to the amount of evidence that would have to be heard on these preliminary matters, the parties agreed with the Tribunal’s suggestion that there will be little saving in time or cost in having these matters heard rather than proceedings to the Full Merits Hearing.  Accordingly, the applications are adjourned to 20 January 2003 for a Full Merits Hearing with a time estimate of 3 days.”

It is clear from that that it was through matters beyond the control of anyone that the case was not substantially disposed of at a preliminary hearing or at a pre-hearing review and that it was with the consent of both parties that the matter went direct to a full hearing.  So far as the point that in order to reach its conclusion the Employment Tribunal had to hear evidence from both Appellants and Respondents  is concerned,. the mere fact that the case is not stopped at half time does not mean that it is not at the conclusion of the hearing so obviously hopeless that it is appropriate for consideration to be given to an order as to costs.

9.	The next point that Mr Elesinnla took on behalf of his clients was that the Tribunal had failed to have regard to the meaning of the word ‘vexatiously’ as explained by Sir Hugh Griffiths, as he then was in E T Marler Ltd –v- Robertson, an old case back in the day of the National Industrial Relations Court.  There he said:

“‘If the employee knows there is no substance in his claim and that is bound to fail, or if the claim is on the face of it so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of the procedure of the Tribunal to pursue it.  If an 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 will award costs against the employee.’” 

10.	The difficulty that Mr Elesinnla faces in relying on that particular passage is that when one looks at regulation 14 the provision in relation to costs, paragraph 14(1) is in these terms:

“Where in the opinion of the Tribunal a party has in bringing the proceedings or a party or parties representative has in conducting the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably or the bringing or conducting of the proceedings by parties being misconceived, the Tribunal shall consider making if it so decide namely an order containing an award against that party in respect of the costs incurred by another party.”

11.	In this instance the Tribunal took the view that the complaints were hopeless and at paragraph 63 said this:

“We consider that both Applicants have in conducting these proceedings acted, vaxatiously and abusively and disruptively and unreasonably, further that their complaints have been misconceived in the sense that word is used in the Employment Tribunals Rules of Procedrue 2001 i.e., the complaints had no reasonable prospect of success.”

12.	In those circumstances the Tribunal was going far wider in simply saying the proceedings were vexatious and it does not in those circumstances seem to us that the absence of any reference to what Sir Hugh Griffiths said about the word ‘vexatiously’ assists in determining whether or not the Tribunal were entitled to make an order for costs.

13.	Finally, it is said that the Tribunal took irrelevant considerations into account and 4 particular points are made.  Firstly, it said the fact that the Appellants were not familiar with documents was irrelevant.  That, in our view, is a mischaracterisation of what the Tribunal said because what the Tribunal said at paragraph 59 was:

“During the course of these proceedings both Applicants demonstrated a considerable lack of familiarity with the documents which were in the bundles before us and which they had had in their possession.  The consequence was that a considerable time was spent by both the Applicants sifting through all the documents, once they had been able to identify them, in a trawl for relevant information or documents in support of their complaints, similarly a considerable time was spent in perusing those documents in order that the Applicants could formulate their questions.  We recognise the difficulties that both Applicants, in representing themselves, had in formulating their questions but their conduct indicated a clear lack of preparation for this hearing.  We estimate that the hearing of this case would have taken no more than one and a half normal tribunal days.”  (When in fact it had taken 3 days)

14.	The factor that the Appellants were not familiar with documents was simply one the matters which the Tribunal took into account in viewing the conduct of the Pereiras in conducting the proceedings as being unreasonable.  Similarly, the second point raised by Mr Elesinnla in this regard, that the time it took the Appellants to formulate their questions was (he said) an irrelevant consideration, was again simply a matter which the Tribunal noted in putting together what might be described as a package of how it was said that the way in which the hearing was conducted was unreasonable.  What the Tribunal said was:

“Nevertheless having regard to that possibility and the fact that the Applicants were representing themselves their questions were unnecessarily repetitious.  In seeking to construct their questions the Applicants spent considerable time trying to do so.”

So, that again is an element which the Tribunal is putting into the mix, if I can put it that way, when considering overall the way in which the Appellants had conducted the hearing.
 
15.	Next Mr Elesinnla says that the hearing was listed for 3 days and took 3 days to complete.  That does not in our judgment excuse the Appellants from any liability in respect of the way in which they conducted the hearing.  The fact that 3 days has been allowed does not mean that parties can distend their presentation over 3 days, blowing it up to fill all the time available.  This was a case which the Tribunal said could have been done in one and a half days.  The result of the Pereiras’ manner of conducting the case was that it took 3 days with obviously the concomitant increase in costs to the unfortunate Respondents.

16.	Finally, it is said by Mr Elesinnla that the Tribunal was in error when it took into account the fact that the Appellants did not amend their complaints and the condition of their complaints.  At paragraph 62 the Tribunal had said:

“The Applicant’s indicated that they had taken advice before presenting their complaints but that this had been at the last minute of the limitation period and that it why their complaints were drafted as they were.  While that may be an explanation for the condition of their complaints when initially presented it does not explain why no amendment, except in one small respect by Harold Pereira or consideration to their content was apparently given to them prior to this hearing.”

17.	The graveness of that complaint is not so much the failure to amend but the failure to have a coherent idea of precisely what the complaints were and how they should be presented to the Tribunal.  Again it was a factor which the Tribunal were entitled to take into account.  When one reads as a whole the paragraphs containing the decision as to whether the cost should be ordered, it seems to us that it cannot properly be said that there is any error of law disclosed.  It cannot be said that the decision is not, as it sometimes put, Meek compliant or that the decision was perverse.  This in our judgment is a decision which discloses no error of law on the face of it and was one which a Tribunal was entitled on the material before it to reach.  In those circumstances there is no point in allowing this appeal to go forward to an inter partes hearing and it should be dismissed at this stage.  And I should conclude by once again expressing our thanks to Mr Elesinnla for the considerable assistance that he has given us in presenting his argument.